1    

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)  

WITH  

WRIT PETITION (CIVIL) NO. 921 OF 2013  

J U D G M E N T    

Dipak Misra, CJI.  [For himself and A.M. Khanwilkar, J.]      

I N D E X    

S. No. Heading Page No.  

A. Introduction 3  

B. The factual background 4  

B.1 The Reference 6  

C. Contentions of the petitioners 8  

D. Contentions of the respondents 12  

E. Supremacy of the Constitution 14  

F. Constitutional limitations upon the  legislature  

17

2    

G. Doctrine of separation of powers 21  

H. Power of judicial review 28  

I. Interpretation of the Constitution – The  nature of duty cast upon this Court  

34  

I.1 Interpretation of fundamental rights 40  

I.2 Interpretation of other  constitutional provisions  

42  

J. A perspective on the role of Parliamentary  Committees  

48  

K. International position of Parliamentary  Committees   

54  

K.1 Parliamentary Committees in  England  

54  

K.2 Parliamentary Committees in United  

States of America  

55  

K.3 Parliamentary Committees in  

Canada  

58  

K.4 Parliamentary Committees in  Australia  

59  

L. Parliamentary Committees in India 60  

L.1 Rules of Procedure and Conduct of  Business in Lok Sabha  

65  

M.  Parliamentary privilege 71  

M.1 Parliamentary privilege under the  Indian Constitution   

72  

M.2 Judicial review of parliamentary  proceedings and its privilege  

81  

N. Reliance on parliamentary proceedings as  external aids  

91  

O. Section 57(4) of the Indian Evidence Act 101  

P. The decisions in which parliamentary  standing committee report/s have been  referred to  

106  

Q. Conclusions 113  

3    

A. Introduction  

In a parliamentary democracy where human rights are  

placed on a high pedestal and a rights-oriented Constitution is  

sought to be interpreted, it becomes the obligation on the part of  

the Constitutional Courts to strike a balance between emphatic  

hermeneutics on progressive perception of the provisions of the  

Constitution on the one hand and the self-imposed judicial  

restraint founded on self-discipline on the other hand, regard  

being had to the nature and character of the article that falls for  

interpretation and its constitutional vision and purpose. The  

Courts never allow a constitutional provision to be narrowly  

construed keeping in view the principle that the Constitution is a  

living document and organic which has the innate potentiality to  

take many a concept within its fold. The Courts, being alive to  

their constitutional sensibility, do possess a progressive outlook  

having a telescopic view of the growing jurisprudence.  

Nonetheless, occasions do arise where the constitutional  

consciousness is invoked to remind the Court that it should not  

be totally oblivious of the idea, being the final arbiter of the  

Constitution, to strike the requisite balance whenever there is a  

necessity, for the founding fathers had wisely conceived the same

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in various articles of the grand fundamental document. In the  

present case, this delicate balance is the cardinal issue, as it  

seems to us, and it needs to be resolved in the backdrop of both  

the principles. The factual score that has given rise to the present  

reference to be dealt with by us is centered on the issue as to  

whether a Parliamentary Standing Committee (PSC) report can be  

placed reliance upon for adjudication of a fact in issue and also  

for what other purposes it can be taken aid of. That apart, to  

arrive at the ultimate conclusion, we will be required to navigate  

and steer through certain foundational fundamentals which take  

within its ambit the supremacy of the Constitution, constitutional  

limitations, separation of powers, power of judicial review and  

self-imposed restraint, interpretation of constitutional provisions  

in many a sphere, the duty of parliamentary committee in various  

democracies and also certain statutory provisions of the Indian  

Evidence Act, 1872 (for brevity, ―the Evidence Act‖).  

B.   The factual background  

2. The initial debate and deliberation before the two-Judge  

Bench that was hearing the instant Writ Petitions had focussed  

around the justifiability of the action taken by the Drugs  

Controller General of India and the Indian Council of Medical

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

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, for preventing  

cervical cancer in women and the experimentation of the vaccine  

was done as an immunisation 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. Apart from the aforesaid issue, the  

grievance with regard to the untimely death of certain persons  

and the grant of compensation on the foundation that there had  

been experiment of the drugs on young girls who had not reached  

the age of majority without the consent of their  

parents/guardians was also highlighted. Be it stated, it was also  

projected that women, though being fully informed, had become  

victims of the said vaccination.  In essence, the submissions were  

advanced pertaining to the hazards of the vaccination and  

obtaining of consent without making the persons aware of the  

possible after effects and the consequences of the administration

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of such vaccine. The two-Judge Bench had passed certain orders  

from time to time with which we are not presently concerned.    

3. In the course of hearing before the two-Judge Bench,  

learned counsel for the writ petitioners had invited the attention  

of the Bench to a report of the Parliamentary Standing Committee  

(PSC) and the Court had directed the Governments to file  

affidavits regarding the steps taken keeping in view the various  

instructions given from time to time including what has been  

stated in the report of the PSC. Certain affidavits were filed by the  

respondents stating about the safety of the vaccination and the  

steps taken to avoid any kind of hazard or jeopardy. That apart,  

the allegations made in the writ petitions were also controverted.   

B.1   The Reference  

4. When the matter stood thus, learned senior counsel for the  

respondent No. 8, MSD Pharmaceuticals Pvt. Ltd.,  and learned  

Additional Solicitor General appearing for the Union of India  

submitted that this Court, while exercising the power of judicial  

review or its expansive jurisdiction under Article 32 of the  

Constitution of India dealing with public interest litigation,  

cannot advert to the report of the PSC and on that basis, exercise  

the power of issue of a writ in the nature of mandamus and issue

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directions. The assistance of learned Attorney General was also  

sought keeping in view the gravity of the issue involved. After  

hearing the matter, the two-Judge Bench in Kalpana Mehta  

and others v. Union of India and others 1  thought it  

appropriate to refer it to a Constitution Bench under Article  

145(3) of the Constitution and in that regard,  the Division Bench  

expressed thus:-  

―72. 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 other side, 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 privilege of  Parliament which the Constitution protects.      73. As advised at present, we are prima facie of the  view that the Parliamentary Standing Committee  

                                                           1 (2017) 7 SCC 307

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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.‖    

5. Thereafter, the two-Judge Bench framed the following  

questions for the purpose of reference to the Constitution Bench:-  

―73.1. (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?     73.2. (ii) Whether such a Report can be looked at for  the purpose of reference and, if so, can there be  restrictions for the purpose of reference regard  being had to the concept of parliamentary privilege  and the delicate balance between the constitutional  institutions that Articles 105, 121 and 122 of the  Constitution conceive?‖     

 Because of the aforesaid reference, the matter has been  

placed before us.   

C.  Contentions of the petitioners  

6. At the very outset, it is essential to state that the argument  

has been advanced by the learned counsel appearing for the  

petitioners that the lis raised neither relates to parliamentary  

privileges as set out in Article 105 of the Constitution nor does it  

pertain to the concept of separation of powers nor does it require

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any adjudication relating to the issue of mandamus for the  

enforcement of the recommendations of the PSC report.  What is  

suggested is that the Court should not decide the controversy as  

per the facts stated in the report of the PSC treating it to be  

conclusive; rather the Court should take judicial notice of the  

same as provided under Section 57(4) of the Evidence Act. It is  

also urged that the Court has the jurisdiction under Article 32 of  

the Constitution to conduct an independent inquiry being  

assisted by the Court Commissioners and also give direction for  

production of the documents from the executive. It is put forth in  

simplest terms that the petitioners are entitled to bring the facts  

stated in the report to the notice of the Court and persuade the  

Court to analyse the said facts and express an opinion at  

variance with the report, for the proceedings in the Court are  

independent of the PSC report which only has persuasive value.   

Emphasising the concept of ―judicial notice‖, it is propounded  

that the scope of judicial review does not rest on a narrow  

spectrum and the Court under the Constitution is within its  

rights to draw factual and legal conclusions on the basis of wide  

spectrum of inputs and materials including what has been stated  

in the PSC report.  

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7. The aforesaid submission, as is noticeable, intends to  

convey that no constitutional debate should be raised with regard  

to reliance on the report of PSC and the Court should decide  

without reference to the concepts of parliamentary privilege,  

separation of powers and comity of institutions.  The argument,  

in entirety, put forth by the petitioners is not founded on the said  

bedrock inasmuch as Mr. Colin Gonsalves and Mr. Anand  

Grover, learned senior counsel appearing for the petitioners, have  

argued that the Constitutional Court in exercise of the power of  

judicial review can take note of at the report of the PSC and also  

rely upon the said report within the constitutional parameters  

and the proposition does not invite any constitutional  

discordance.  It is further contended that the concept of  

parliamentary privilege is enshrined under Article 105 of the  

Constitution which guarantees freedom of speech within the  

House during the course of the proceedings of the House and the  

said freedom has been conferred to ensure that the members of  

Parliament express themselves freely in Parliament without fear  

of any impediment of inviting any civil or criminal proceedings.  

The initial part of clause (2) of Article 105 confers, inter alia,  

immunity to the members of Parliament from civil and criminal

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proceedings before any court in respect of ‗anything said‘ or ‗any  

vote given‘ by members of Parliament in the Parliament or any  

Committee thereof.  

8. It is argued that this being the position, the factual score of  

the instant case does not invite the wrath of violation of  

parliamentary privilege which Article 105 seeks to protect.  It is  

because the limited issue that emerges in the present case is to  

see the Parliamentary Standing Committee reports.  Thus,  

looking at the report for arriving at the truth by the Court in its  

expansive jurisdiction under Article 32 of the Constitution  

remotely touches the concept of privilege under Article 105 of the  

Constitution. It is further canvassed that the facts that have been  

arrived at by the Parliamentary Committee are of immense  

assistance for the adjudication of the controversy in question and  

in such a situation, it is crystal clear that the purpose of the  

petitioners is not to file a civil or criminal case against any  

member of the Parliament or any member of the Standing  

Committee.  Therefore, the violation of parliamentary privilege  

does not arise.  

9. Learned counsel for the petitioners would contend that this  

Court is neither called upon to comment expressly or otherwise

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on the report nor a writ of mandamus has been sought for  

enforcement of the recommendations in the report.  It is brought  

on record so that the Court can look at the facts stated therein  

and arrive at a just conclusion in support of other facts.  

D.  Contentions of the respondents  

10. Both the facets of the arguments advanced by the learned  

counsel appearing for the petitioners have been seriously  

opposed by Mr. K.K. Venugopal, learned Attorney General for  

India, Mr. Harish N. Salve, Mr. Gourab Banerji and Mr. Shyam  

Divan, learned senior counsel appearing for the contesting  

respondents. Their basic propositions are grounded, first on  

constitutional provisions which prescribe the privilege of the  

Parliament and how the report of a PSC is not amenable to  

contest and the limited reliance that has been placed by this  

Court on the report of PSC or the speech of a Minister on the  

floor of the legislature only to understand the provisions of a  

statute in certain context and second, the limited interpretation  

that is required to be placed on the words ―judicial notice‖ as  

used in Section 57(4) of the Evidence Act regard being had to the  

context. It is urged by them that allowing contest and criticism of

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the report would definitely create a stir in the constitutional  

balance.   

11. It is also highlighted that in a public interest litigation, the  

Court has relaxed the principle of locus standi, encouraged  

epistolary jurisdiction, treated the petitioner as a relator, required  

the parties on certain occasions not to take an adversarial  

position and also not allowed technicalities to create any kind of  

impediment in the dispensation of justice but the said category of  

cases cannot be put on a high pedestal to create a concavity in  

the federal structure of the Constitution or allow to place a  

different kind of interpretation on a constitutional provision  

which will usher in a crack in the healthy spirit of the  

Constitution.  

12. We shall refer to the arguments and the authorities cited by  

both sides in the course of our deliberation. Suffice it to mention,  

the fundamental analysis has to be done on the base of the  

constitutional provisions, the constitutional values and the  

precedents. To address the issue singularly from the prism of  

Section 57(4) of the Evidence Act, we are afraid, will tantamount  

to over simplification of the issue. Therefore, the said aspect shall  

be addressed to at the appropriate stage.

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E.  Supremacy of the Constitution  

13.  The Constitution of India is the supreme fundamental law  

and all laws have to be in consonance or in accord with the  

Constitution. The constitutional provisions postulate the  

conditions for the functioning of the legislature and the executive  

and prescribe that the Supreme Court is the final interpreter of  

the Constitution.  All statutory laws are required to conform to  

the fundamental law, that is, the Constitution.  The functionaries  

of the three wings, namely, the legislature, the executive and the  

judiciary, as has been stated in His Holiness Kesavananda  

Bharati Sripadagalvaru v.  State of Kerala and another2,  

derive their authority and jurisdiction from the Constitution.  The  

Parliament has the exclusive authority to make laws and that is  

how the supremacy of the Parliament in the field of legislation is  

understood. There is a distinction between parliamentary  

supremacy in the field of legislation and constitutional  

supremacy. The Constitution is the fundamental document that  

provides for constitutionalism, constitutional governance and  

also sets out morality, norms and values which are inhered in  

various articles and sometimes are decipherable from the  

                                                           2 AIR 1973 SC 1461 : (1973) 4 SCC 225

15    

constitutional silence. Its inherent dynamism makes it organic  

and, therefore, the concept of ―constitutional sovereignty‖ is  

sacrosanct. It is extremely sacred and, as stated earlier, the  

authorities get their powers from the Constitution.  It is ―the  

source‖.  Sometimes, the constitutional sovereignty is described  

as the supremacy of the Constitution.  

14. In State of Rajasthan and others v. Union of India and  

others 3 , Bhagwati, J. (as his Lordship then was), in his  

concurring opinion, stated that the Constitution is suprema lex,  

the paramount law of the land and there is no department or  

branch of government above or beyond it.  The learned Judge,  

proceeding further, observed that every organ of the government,  

be it the executive or the legislature or the judiciary, derives its  

authority from the Constitution and it has to act within the limits  

of its authority. Observing about the power of this Court, he  

ruled that this Court is the ultimate interpreter of the  

Constitution and to this Court is assigned the delicate task of  

determining what is the power conferred on each branch of the  

Government, whether it is limited, and if so, what are the limits  

and whether any action of that branch transgresses such limits.  

                                                           3 (1977) 3 SCC 592

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He further observed that it is for this Court to uphold the  

constitutional values and to enforce the constitutional  

limitations, for it is the essence of the rule of law. Elaborating the   

said concept, Sabharwal, C.J. in I.R. Coelho (Dead) by LRs. v.  

State of T.N.4, speaking for the nine-Judge Bench, held that the  

supremacy of the Constitution embodies that constitutional  

bodies are required to comply with the provisions of the  

Constitution. It also mandates a mechanism for testing the  

validity of legislative acts through an independent organ, viz., the  

judiciary.  

15. Be it noted, in the aforesaid case, a distinction was drawn  

between parliamentary and constitutional sovereignty.  Speaking  

on the same, the Bench opined that our Constitution was framed  

by a Constituent Assembly which was not Parliament. It is in the  

exercise of law-making power by the Constituent Assembly that  

we have a controlled Constitution. Articles 14, 19 and 21  

represent the foundational values which form the bedrock of the  

rule of law. These are the principles of constitutionality which  

form the basis of judicial review apart from the rule of law and  

separation of powers.   

                                                           4 (2007) 2 SCC 1

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16. Thus, the three wings of the State are bound by the doctrine  

of constitutional sovereignty and all are governed by the  

framework of the Constitution.  The Constitution does not accept  

transgression of constitutional supremacy and that is how the  

boundary is set.  

F. Constitutional limitations upon the legislature   

17. The law making power of the Parliament or State legislature  

is bound by the concept of constitutional limitation.  It is  

necessary to appreciate what precisely is meant by constitutional  

limitation.   In State of West Bengal v. Anwar Ali Sarkar5, this  

Court, in the context of freedom of speech and expression  

conferred by Article 19(1)(a) of the Constitution, applied the  

principle of constitutional limitation and opined that where a law  

purports to authorise the imposition of restrictions on a  

fundamental right in a language wide enough to cover  

restrictions both within and without the limits of constitutionally  

permissible legislative action affecting such right, it is not  

possible to uphold it even so far as it may be applied within the  

constitutional limits, as it is not severable. So long as the  

possibility of its being applied for purposes not sanctioned by the  

                                                           5 1952 SCR 284 : AIR 1952 SC 75

18    

Constitution cannot be ruled out, it must be held to be wholly  

unconstitutional and void. The emphasis was laid on  

constitutional limitation. In K.C. Gajapati Narayan Deo v.  

State of Orissa 6 , the Court adverted to the real purpose of  

legislation and colourable legislation and, in that context,  

expressed that when a scrutiny is made, it may appear that the  

real purpose of a legislation is different from what appears on the  

face of it.  It would be a colourable legislation only if it is shown  

that the real object is different as a consequence of which it lies  

within the exclusive field of another legislature.    

18. Dwelling upon the legal effect of a constitutional limitation  

of legislative power with respect to a law made in derogation of  

that limitation, the Court in Deep Chand v. State of Uttar  

Pradesh and others7 reproduced a passage from Cooley‘s book  

on ―Constitutional Limitation‖ (Eighth Edition, Volume I) which is  

to the following effect:-  

―From what examination has been given to this  subject, it appears that whether a statute is  constitutional or not is always a question of power;  that is, a question whether the legislature in the  particular case, in respect to the subject-matter of  the act, the manner in which its object is to be  accomplished, and the mode of enacting it, has kept  

                                                           6 1954 SCR 1 : AIR 1953 SC 375  7 1959 Supp. (2) SCR 8 : AIR 1959 SC 648

19    

within the constitutional limits and observed the  constitutional conditions.‖  

 Thereafter, the Constitution Bench referred to the  

observations of the Judicial Committee in Queen v. Burah 8  

wherein it was observed that whenever a question as to whether  

the legislature has exceeded its prescribed limits arises, the  

courts of justice determine the said question by looking into the  

terms of the instrument which created the legislative powers  

affirmatively and which restricted the said powers negatively.   

The Constitution Bench also referred to the observations of the  

Judicial Committee in Attorney-General for Ontario v.  

Attorney-General for Canada 9  which were later on lucidly  

explained by Mukherjea, J., (as he then was) in K.C. Gajapati  

Narayan Deo (supra) to the effect that if the Constitution  

distributes the legislative powers amongst different bodies which  

have to act within their respective spheres marked out by specific  

legislative entries or if there are limitations on the legislature in  

the form of fundamental rights, the question will arise as to  

whether, in a particular case, the legislature has transgressed the  

                                                           8 (1878) LR 5 I.A. 178  9 (1912) AC 571

20    

limits of its constitutional power in respect of the subject matter  

of the statute or in the method of making it.   

19. Recently, in Binoy Viswam v. Union of India and others10  

this Court, while dealing with the exercise of sovereign power of  

the Centre and the States in the context of levy of taxes, duties  

and fees, observed that the said exercise of power is subject to  

constitutional limitation. It is imperative to remember that our  

Constitution has, with the avowed purpose, laid down the powers  

exercised by the three wings of the State and in exercise of the  

said power, the authorities are constitutionally required to act  

within their spheres having mutual institutional respect to realize  

the constitutional goal and to see that there is no constitutional  

transgression. The grammar of constitutional limitation has to be  

perceived as the constitutional fulcrum where control operates  

among the several power holders, that is, legislature, executive  

and judiciary. It is because the Constitution has created the  

three organs of the State.   

20. Under the Constitution, the Parliament and the State  

legislatures have been entrusted with the power of law making.   

Needless to say, if there is a transgression of the constitutional  

                                                           10  (2017) 7 SCC 59

21    

limitation, the law made by the legislature has to be declared  

ultra vires by the Constitutional Courts.  That power has been  

conferred on the Courts under the Constitution and that is why,  

we have used the terminology ―constitutional sovereignty‖. It is  

an accepted principle that the rule of law constitutes the core of  

our Constitution and it is the essence of the rule of law that the  

exercise of the power by the State, whether it be the legislature or  

the executive or any other authority, should be within the  

constitutional limitations.   

G. Doctrine of separation of powers  

21. Having stated about constitutional sovereignty and  

constitutional limitation, we may presently address the issue as  

to how the Constitution of India has been understood in the  

context of division of functions of the State.  In Smt. Indira  

Nehru Gandhi v. Shri Raj Narain and another11, Beg, J., in  

his concurring opinion, quoted what M.C. Setalvad, a  

distinguished jurist of India, had said in ―The Common Law in  

India‖ (The Hamlyn Lectures), 12th Series, 1960.  We think it  

appropriate to reproduce the paragraph in entirety:-  

―The Constitution divides the functions of the Union  into the three categories of executive, legislative and  

                                                           11  1975 Supp. SCC 1

22    

judicial functions following the pattern of the British  North America Act and the Commonwealth of  Australia Act. Though this division of functions is  not based on the doctrine of separation of powers as  in the United States yet there is a broad division of  functions between the appropriate authorities so  that, for example, the legislature will not be entitled  to arrogate to itself the judicial function of  adjudication. ‗The Indian Constitution has not  indeed recognised the doctrine of separation of  powers in its absolute rigidity but the functions of  the different parts or branches of the Government  have been sufficiently differentiated and  consequently it can very well be said that our  Constitution does not contemplate assumption, by  one organ or part of the State, of functions that  

essentially belong to another.‘ (See: Rai Saheb Ram  Jawaya Kapur v. State of Punjab12 ). This will no  doubt strike one accustomed to the established  supremacy of Parliament in England as unusual. In  the course of its historical development Parliament  has performed and in a way still performs judicial  functions. Indeed the expression ‗Court of  Parliament‘ is not unfamiliar to English lawyers.  However, a differentiation of the functions of  different departments is an invariable feature of all  written Constitutions. The very purpose of a written  Constitution is the demarcation of the powers of  different departments of Government so that the  exercise of their powers may be limited to their  particular fields. In countries governed by a written  Constitution, as India is, the supreme authority is  not Parliament but the Constitution. Contrasting it  with the supremacy of Parliament, Dicey has  characterised it as the supremacy of the  Constitution.‖  

[Emphasis added]  

                                                           12  AIR 1955 SC 549 : (1955) 2 SCR 225

23    

22. The doctrine of separation of powers has become concrete in  

the Indian context when the Court in Kesavananda Bharati’s  

case treated the same as a basic feature of the Constitution of  

India. In State of Himachal Pradesh v. A Parent of a Student  

of Medical College, Simla and others13, this Court ruled that it  

is entirely a matter for the executive branch of the Government to  

decide whether or not to introduce any particular legislation. Of  

course, any member of the legislature can also introduce  

legislation but the Court certainly cannot mandate the executive  

or any member of the legislature to initiate legislation, howsoever  

necessary or desirable the Court may consider it to be. That is  

not a matter which is within the sphere of the functions and  

duties allocated to the judiciary under the Constitution. The  

Court further observed that it cannot usurp the functions  

assigned to the legislature under the Constitution and it cannot  

even indirectly require the executive to introduce a particular  

legislation or the legislature to pass it or assume to itself a  

supervisory role over the law-making activities of the executive  

and the legislature. In State of Tamil Nadu v. State of Kerala  

and another 14 , this Court, laying down the principle of  

                                                           13 (1985) 3 SCC 169  14 (2014) 12 SCC 696

24    

separation of powers, stated that even without express provision  

of the separation of powers, the doctrine of separation of powers  

is an entrenched principle in the Constitution of India. The  

doctrine of separation of powers informs the Indian constitutional  

structure and it is an essential constituent of the rule of law.  

23. In Bhim Singh v. Union of India and others15, the Court,  

for understanding the concept of separation of powers, observed  

that two aspects must be borne in mind.  One, that separation of  

powers is an essential feature of the Constitution and secondly,   

that in modern governance, a strict separation is neither possible  

nor desirable. Nevertheless, till this principle of accountability is  

preserved, there is no violation of separation of powers and the  

same is founded on keen scrutiny of the constitutional text. The  

Constitution does not strictly prohibit overlap of functions and, in  

fact, provides for some overlap in a parliamentary democracy.  

What it prohibits is such exercise of function of the other branch  

which results in wresting away of the regime of constitutional  

accountability.  

24. In Mansukhlal Vithaldas Chauhan v. State of Gujarat16,  

Federation of Railway Officers Association and others v.  

                                                           15 (2010) 5 SCC 538  16 AIR 1997 SC 3400 : (1997) 7 SCC 622

25    

Union of India17  and State of Maharashtra and others v.  

Raghunath Gajanan Waingankar 18 , the Court applied the  

principle of restraint, acknowledging and respecting the  

constitutional limitation upon the judiciary to recognize the  

doctrine of separation of powers and restrain itself from entering  

into the domain of the legislature. Elaborating further, this Court  

in Divisional Manager, Aravali Golf Club and another v.  

Chander Hass and another 19  observed that under our  

constitutional scheme, the Legislature, Executive and Judiciary  

have their own broad spheres of operation and each organ must  

have respect for the others and must not encroach into each  

others‘ domain, otherwise the delicate balance in the Constitution  

will be upset, and there will be a reaction.  

25. In Asif Hameed and others v. State of Jammu and  

Kashmir and others20, the Court observed that the Constitution  

makers have meticulously defined the functions of various organs  

of the State. The Legislature, Executive and Judiciary have to  

function within their own spheres demarcated under the  

Constitution. It further ruled that the Constitution trusts the  

                                                           17 (2003) 4 SCC 289 : AIR 2003 SC 1344  18 AIR 2004 SC 4264  19 (2008) 1 SCC 683  20 AIR 1989 SC 1899

26    

judgment of these organs to function and exercise their discretion  

by strictly following the procedure prescribed therein. The  

functioning of democracy depends upon the strength and  

independence of each of its organs. The Legislature and the  

Executive, the two facets of people's will, have all the powers  

including that of finance. The judiciary has no power over the  

sword or the purse. Nonetheless, it has power to ensure that the  

aforesaid two main organs of the State function within the  

constitutional limits. It is the sentinel of democracy. Judicial  

review is a powerful weapon to restrain unconstitutional exercise  

of power by the legislature and the executive. The expanding  

horizon of judicial review has taken in its fold the concept of  

social and economic justice. The exercise of powers by the  

legislature and executive is subject to judicial restraint and the  

only check on the exercise of power by the judiciary is the self  

imposed discipline of judicial restraint.  

26. In I.R. Coelho (supra), adverting to the issue of separation  

of powers, the nine-Judge Bench referred to the basic structure  

doctrine laid down in Kesavananda Bharati (supra) by the  

majority and the reiteration thereof in Indira Nehru Gandhi

27    

(supra) and reproduced a passage from Alexander Hamilton‘s  

book ―The Federalist‖ and eventually  held:-  

―67. The Supreme Court has long held that the  separation of powers is part of the basic structure of  the Constitution. Even before the basic structure  doctrine became part of constitutional law, the  importance of the separation of powers on our  system of governance was recognised by this Court  in Special Reference No. 1 of 1964.‖    

27. From the above authorities, it is quite vivid that the concept  

of constitutional limitation is a facet of the doctrine of separation  

of powers. At this stage, we may clearly state that there can really  

be no strait-jacket approach in the sphere of separation of powers  

when issues involve democracy, the essential morality that flows  

from the Constitution, interest of the citizens in certain spheres  

like environment, sustenance of social interest, etc. and  

empowering the populace with the right to information or right to  

know in matters relating to candidates contesting election. There  

can be many an example where this Court has issued directions  

to the executive and also formulated guidelines for facilitation  

and in furtherance of fundamental rights and sometimes for the  

actualization and fructification of statutory rights.     

28    

H. Power of judicial review  

28.  While focussing on the exercise of the power of judicial  

review, it has to be borne in mind that the source of authority is  

the Constitution of India.  The Court has the adjudicating  

authority to scrutinize the limits of the power and transgression  

of such limits. The nature and scope of judicial review has been  

succinctly stated in Union of India and another v. Raghubir  

Singh (Dead) by LRs. etc.21 by R.S. Pathak, C.J. thus:-  

―….. The range of judicial review recognised in the  superior judiciary of India is perhaps the widest and  the most extensive known to the world of law. …  With this impressive expanse of judicial power, it is  only right that the superior courts in India should  be conscious of the enormous responsibility which  rest on them. This is specially true of the Supreme  Court, for as the highest Court in the entire judicial  system the law declared by it is, by Article 141 of  the Constitution, binding on all courts within the  territory of India.  

And again:-    

―Legal compulsions cannot be limited by existing  legal propositions, because there will always be,  beyond the frontiers of the existing law, new areas  inviting judicial scrutiny and judicial choice-making  which could well affect the validity of existing legal  dogma. The search for solutions responsive to a  changed social era involves a search not only among  competing propositions of law, or competing  versions of a legal proposition, or the modalities of  an indeterminacy such as ‗fairness‘ or  

                                                           21 (1989) 2 SCC 754

29    

‗reasonableness‘, but also among propositions from  outside the ruling law, corresponding to the  empirical knowledge or accepted values of present  time and place, relevant to the dispensing of justice  within the new parameters.‖  

  The aforesaid two passages lay immense responsibility on  

the Court pertaining to the exercise of the power keeping in view  

the accepted values of the present. An organic instrument  

requires the Court to draw strength from the spirit of the  

Constitution. The propelling element of the Constitution  

commands the realization of the values.  The aspiring dynamism  

of the interpretative process also expects the same.   

29.  This Court has the constitutional power and the authority  

to interpret the constitutional provisions as well as the statutory  

provisions.  The conferment of the power of judicial review has a  

great sanctity as the Constitutional Court has the power to  

declare any law as unconstitutional if there is lack of competence  

of the legislature keeping in view the field of legislation as  

provided in the Constitution or if a provision contravenes or runs  

counter to any of the fundamental rights or any constitutional  

provision or if a provision is manifestly arbitrary.    

30. When we speak about judicial review, it is also necessary to  

be alive to the concept of judicial restraint. The duty of judicial

30    

review which the Constitution has bestowed upon the judiciary is  

not unfettered; it comes within the conception of judicial  

restraint. The principle of judicial restraint requires that judges  

ought to decide cases while being within their defined limits of  

power. Judges are expected to interpret any law or any provision  

of the Constitution as per the limits laid down by the  

Constitution.   

31. In S.C. Chandra and others v. State of Jharkhand and  

others22, it has been ruled that the judiciary should exercise  

restraint and ordinarily should not encroach into the legislative  

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

decision in Suresh Seth v. Commr., Indore Municipal Corpn.  

and others23 is quite instructive.  In the said case, a prayer was  

made before this Court to issue directions for appropriate  

amendment in the M.P. Municipal Corporation Act, 1956.  

Repelling the submission, the Court held that it is purely a  

matter of policy which is for the elected representatives of the  

people to decide and no directions can be issued by the Court in  

this regard.  The Court further observed that this Court cannot  

issue directions to the legislature to make any particular kind of  

                                                           22 (2007) 8 SCC 279  23 (2005) 13 SCC 287

31    

enactment.  In this context, the Court held that under our  

constitutional scheme, the Parliament and legislative assemblies  

exercise sovereign power to enact law and no outside power or  

authority can issue a direction to enact a particular kind of  

legislation.  While so holding, the Court referred to the decision in   

Supreme Court Employees’ Welfare Association v. Union of  

India and another24 wherein it was held that no court can direct  

a legislature to enact a particular law and similarly when an  

executive authority exercises a legislative power by way of a  

subordinate legislation pursuant to the delegated authority of a  

legislature, such executive authority cannot be asked to enact a  

law which it has been empowered to do under the delegated  

authority.  

32. Recently, in Census Commissioner and others v. R.  

Krishnamurthy 25 , the Court, after referring to Premium  

Granites and another v. State of T.N. and others26, M.P. Oil  

Extraction and another v. State of M.P. and others27, State  

of Madhya Pradesh v. Narmada Bachao Andolan and  

                                                           24 (1989) 4 SCC 187  25 (2015) 2 SCC 796  26 (1994) 2 SCC 691  27 (1997) 7 SCC 592

32    

another28and State of Punjab and others v. Ram Lubhaya  

Bagga and others29, held:-  

―From the aforesaid pronouncement of law, it is  clear as noon day that it is not within the domain of  the courts to embark upon an enquiry as to whether  a particular public policy is wise and acceptable or  whether a better policy could be evolved. The court  can only interfere if the policy framed is absolutely  capricious or not informed by reasons or totally  arbitrary and founded ipse dixit offending the basic  requirement of Article 14 of the Constitution. In  certain matters, as often said, there can be opinions  and opinions but the court is not expected to sit as  an appellate authority on an opinion.‖  

33. At this juncture, we think it apt to clearly state that the  

judicial restraint cannot and should not be such that it amounts  

to judicial abdication and judicial passivism. The Judiciary  

cannot abdicate the solemn duty which the Constitution has  

placed on its shoulders, i.e., to protect the fundamental rights of  

the citizens guaranteed under Part III of the Constitution. The  

Constitutional Courts cannot sit in oblivion when fundamental  

rights of individuals are at stake. Our Constitution has conceived  

the Constitutional Courts to act as defenders against illegal  

intrusion of the fundamental rights of individuals. The  

Constitution, under its aegis, has armed the Constitutional  

                                                           28 (2011) 7 SCC 639  29 (1998) 4 SCC 117

33    

Courts with wide powers which the Courts should exercise,  

without an iota of hesitation or apprehension, when the  

fundamental rights of individuals are in jeopardy. Elucidating on  

the said aspect, this Court in Virendra Singh and others v.  

The State of Uttar Pradesh30 has observed:-  

"32. We have upon us the whole armour of the  Constitution and walk from henceforth in its  enlightened ways, wearing the breastplate of its  protecting provisions and flashing the flaming sword  of its inspiration."  

34. While interpreting fundamental rights, the Constitutional  

Courts should remember that whenever an occasion arises, the  

Courts have to adopt a liberal approach with the object to infuse  

lively spirit and vigour so that the fundamental rights do not  

suffer.  When we say so, it may not be understood that while  

interpreting fundamental rights, the Constitutional Courts  

should altogether depart from the doctrine of precedents but it is  

the obligation of the Constitutional Courts to act as sentinel on  

the qui vive to ardently guard the fundamental rights of  

individuals bestowed upon by the Constitution. The duty of this  

                                                           30 AIR 1954 SC 447

34    

Court, in this context, has been aptly described in the case of  

K.S. Srinivasan v. Union of India31  wherein it was stated:-  

"... All I can see is a man who has been wronged  and I can see a plain way out. I would take it."  

 35. Such an approach applies with more zeal in case of                

Article 32 of the Constitution which has been described by                  

Dr. B.R. Ambedkar as "the very soul of the Constitution - the very  

heart of it - the most important Article."  Article 32 enjoys special  

status and, therefore, it is incumbent upon this Court, in matters  

under Article 32, to adopt a progressive attitude. This would be in  

consonance with the duty of this Court under the Constitution,  

that is, to secure the inalienable fundamental rights of  

individuals.  

I. Interpretation of the Constitution – The nature of duty  cast upon this Court    

36.  Having stated about the supremacy of the Constitution and  

the principles of constitutional limitation, separation of powers  

and the spheres of judicial review, it is necessary to dwell upon  

the concept of constitutional interpretation. In S.R. Bommai and  

others v. Union of India and others32, it has been said that for  

maintaining democratic process and to avoid political friction, it  

                                                           31 AIR 1958 SC 419  32 (1994) 3 SCC 1

35    

is necessary to direct the political parties within the purview of  

the constitutional umbrella to strongly adhere to constitutional  

values. There is no denial of the fact that the judiciary takes note  

of the obtaining empirical facts and the aspirations of the  

generation that are telescoped into the future. If constitutional  

provisions have to be perceived from the prism of growth and  

development in the context of time so as to actualize the social  

and political will of the people that was put to in words, they have  

to be understood in their life and spirit with the further  

potentiality to change.  

37. A five-Judge Bench in GVK Industries Limited and another  

v. Income Tax Officer and another33 has lucidly expressed that  

our Constitution charges the various organs of the State with  

affirmative responsibilities of protecting the welfare and the  

security of the nation. Legislative powers are granted to enable  

the accomplishment of the goals of the nation. The powers of  

judicial review are granted in order to ensure that legislative and  

executive powers are used within the bounds specified by the  

Constitution. The powers referred by the Constitution and  

implied and borne by the constitutional text have to be perforce  

                                                           33 (2011) 4 SCC 36

36    

admitted. Nevertheless, the very essence of constitutionalism is  

also that no organ of the State may arrogate to itself powers  

beyond what is specified by the Constitution. Speaking on the  

duty of the judiciary, the Court has opined that judicial restraint  

is necessary in dealing with the powers of another coordinate  

branch of the Government; but restraint cannot imply abdication  

of the responsibility of walking on that edge. Stressing on the  

facet of interpreting any law, including the Constitution, the  

Court observed that the text of the provision under consideration  

would be the primary source for discerning the meanings that  

inhere in the enactment. It has also been laid down that in the  

light of the serious issues, it would always be prudent, as a  

matter of constitutional necessity, to widen the search for the  

true meaning, purport and ambit of the provision under  

consideration. No provision, and indeed no word or expression, of  

the Constitution exists in isolation—they are necessarily related  

to, transforming and, in turn, being transformed by other  

provisions, words and phrases in the Constitution. Therefore, the  

Court went on to say:-  

―38. Our Constitution is both long and also an  intricate matrix of meanings, purposes and  structures. It is only by locating a particular  constitutional provision under consideration within

37    

that constitutional matrix could one hope to be able  to discern its true meaning, purport and ambit. As  Prof. Laurence Tribe points out:  

 ―[T]o understand the Constitution as a legal  

text, it is essential to recognize the … sort of text  

it is: a constitutive text that purports, in the name  of the people…, to bring into being a number of  distinct but inter-related institutions and  practices, at once legal and political, and to  define the rules governing those institutions and  

practices.‖ (See Reflections on Free-Form Method  in Constitutional Interpretation.34)‖    

38. The Constitution being an organic document, its ongoing  

interpretation is permissible. The supremacy of the Constitution  

is essential to bring social changes in the national polity evolved  

with the passage of time. The interpretation of the Constitution is  

a difficult task. While doing so, the Constitutional Courts are not  

only required to take into consideration their own experience over  

time, the international treaties and covenants but also keep the  

doctrine of flexibility in mind. It has been so stated in Union of  

India v. Naveen Jindal and another35. In S.R. Bommai (supra)  

the Court ruled that correct interpretation in proper perspective  

would be in the defence of democracy and in order to maintain  

the democratic process on an even keel even in the face of  

possible friction, it is but the duty of the Court to interpret the  

                                                           34 108 Harv L Rev 1221, 1235 (1995)  35 (2004) 2 SCC 510

38    

Constitution to bring the political parties within the purview of  

the constitutional parameters for accountability and to abide by  

the Constitution and the laws for their strict adherence. With the  

passage of time, the interpretative process has become expansive.  

It has been built brick by brick to broaden the sphere of rights  

and to assert the constitutional supremacy to meet the legitimate  

expectations of the citizens. The words of the Constitution have  

been injected life to express connotative meaning.    

39. Recently, in K.S. Puttaswamy and another v. Union of  

India and others36, one of us (Dr. D.Y. Chandrachud, J.) has  

opined that constitutional developments have taken place as the  

words of the Constitution have been interpreted to deal with new  

exigencies requiring an expansive reading of liberties and  

freedoms to preserve human rights under the Rule of Law.  It has  

been further observed that the interpretation of the Constitution  

cannot be frozen by its original understanding, for the  

Constitution has evolved and must continuously evolve to meet  

the aspirations and challenges of the present and the future.  The  

duty of the Constitutional Courts to interpret the Constitution  

opened the path for succeeding generations to meet the  

                                                           36 (2017) 10 SCC 1

39    

challenges.  Be it stated, the Court was dealing with privacy as a  

matter of fundamental right.  

40. In Supreme Court Advocates-on-Record Association and  

others v. Union of India 37 , the Court exposited that the  

Constitution has not only to be read in the light of contemporary  

circumstances and values but also in such a way that the  

circumstances and values of the present generation are given  

expression in its provisions. The Court has observed that  

constitutional interpretation is as much a process of creation as  

one of discovery. Thus viewed, the process of interpretation ought  

to meet the values and aspirations of the present generation and  

it has two facets, namely, process of creation and discovery. It  

has to be remembered that while interpreting a constitutional  

provision, one has to be guided by the letter, spirit and purpose  

of the language employed therein and also the constitutional  

silences or abeyances that are discoverable. The scope and  

discovery has a connection with the theory of constitutional  

implication. Additionally, the interpretative process of a provision  

of a Constitution is also required to accentuate the purpose and  

                                                           37 (1993) 4 SCC 441

40    

convey the message of the Constitution which is intrinsic to the  

Constitution.  

I.1 Interpretation of fundamental rights  

41. While adverting to the concept of the duty of the Court, we  

shall focus on the interpretative process adopted by this Court in  

respect of fundamental rights.  In the initial years, after the  

Constitution came into force, the Court viewed each fundamental  

right as separate and distinct.  That apart, the rule of restrictive  

interpretation was applied. The contours were narrow and  

limited.  It is noticeable from the decision in A.K. Gopalan v.  

State of Madras38.  The perception changed when the Court  

focussed on the actual impairment caused by the law rather than  

the literal validity of the law as has been observed in I.R. Coelho  

(supra).  I.R. Coelho referred to Rustom Cavasjee Cooper v.  

Union of India39 and understood that the view rendered therein  

disapproved the view point in A.K. Gopalan and reflected upon  

the concept of impact doctrine in Sakal Papers (P) Ltd. v. Union  

of India40.  The Court, after referring to Sambhu Nath Sarkar  

v. State of West Bengal and others41, Haradhan Saha v. The  

                                                           38 AIR 1950 SC 27 : 1950 SCR 88  39 (1970) 1 SCC 248  40 (1962) 3 SCR 842 : AIR 1962 SC 305  41 (1974) 1 SCR 1 : (1973) 1 SCC 856

41    

State of West Bengal and others 42  and Khudiram Das v.  

State of West Bengal and others43, reproduced a passage from  

Maneka Gandhi v. Union of India and another44 which reads  

thus:-  

―The law, must, therefore, now be taken to be well  settled that Article 21 does not exclude Article 19  and that even if there is a law prescribing a  procedure for depriving a person of ‗personal liberty‘  and there is consequently no infringement of the  fundamental right conferred by Article 21, such law,  insofar as it abridges or takes away any  fundamental right under Article 19 would have to  meet the challenge of that article.‖     

42. The Court reproduced a passage from the opinion expressed  

by Krishna Iyer, J. which stated that the proposition is  

indubitable that Article 21 does not, in a given situation, exclude  

Article 19 if both the rights are breached.  

43. In I.R. Coelho (supra), the Court clearly spelt out that post-

Maneka Gandhi, it is clear that the development of fundamental  

rights had been such that it no longer involves the interpretation  

of rights as isolated protections which directly arise but they  

collectively form a comprehensive test against the arbitrary  

exercise of powers in any area that occurs as an inevitable  

consequence. The Court observed that the protection of  

                                                           42 (1975) 3 SCC 198 : (1975) 1 SCR 778  43 (1975) 2 SCR 832 : (1975) 2 SCC 81  44 (1978) 1 SCC 248

42    

fundamental rights has been considerably widened.  In that  

context, reference had been made to M. Nagaraj and others v.  

Union of India and others45 wherein it has been held that a  

fundamental right becomes fundamental because it has  

foundational value.  That apart, one has also to see the structure  

of the article in which the fundamental value is incorporated.  

Fundamental right is a limitation on the power of the State. A  

Constitution and, in particular, that of it which protects and  

which entrenches fundamental rights and freedoms to which all  

persons in the State are to be entitled is to be given a generous  

and purposive construction. The Court must interpret the  

Constitution in a manner which would enable the citizens to  

enjoy the rights guaranteed by it in the fullest measure.   

I.2 Interpretation of other constitutional provisions  

44. In this regard, we may note how the Constitution Benches  

have applied the principles of interpretation in relation to other   

constitutional provisions which are fundamental to constitutional  

governance and democracy. In B.R. Kapur v. State of T.N. and  

another46, while deciding a writ of quo warranto, the majority  

ruled that if a non-legislator could be sworn in as the Chief  

                                                           45 (2006) 8 SCC 212  46 (2001) 7 SCC 231

43    

Minister under Article 164 of the Constitution, then he must  

satisfy the qualification of membership of a legislator as  

postulated under Article 173. I.R. Coelho (supra), while deciding  

the doctrine of implied limitation and referring to various  

opinions stated in Kesavananda Bharati (supra) and Minerva  

Mills Ltd. and others v. Union of India and others47, ruled  

that the principle of implied limitation is attracted to the sphere  

of constitutional interpretation.  

45. In Manoj Narula v. Union of India48 , the Court, while  

interpreting Article 75(1) of the Constitution, opined that reading  

of implied limitation to the said provision would tantamount to  

prohibition or adding a disqualification which is neither expressly  

stated nor impliedly discernible from the provision. Eventually,  

the majority expressed that when there is no disqualification for a  

person against whom charges have been framed in respect of  

heinous or serious offences or offences relating to corruption to  

contest the election, it is difficult to read the prohibition into  

Article 75(1) by interpretative process or, for that matter, into  

Article 164(1) to the powers of the Prime Minister or the Chief  

Minister in such a manner. That would come within the criterion  

                                                           47 (1980) 3 SCC 625  48 (2014) 9 SCC 1

44    

of eligibility and would amount to prescribing an eligibility  

qualification and adding a disqualification which has not been  

stipulated in the Constitution. In the absence of any  

constitutional prohibition or statutory embargo, such  

disqualification cannot be read into Article 75(1) or Article 164(1)  

of the Constitution.  

46. Another aspect that was highlighted in Manoj Narula  

(supra) pertained to constitutional implication and it was  

observed that the said principle of implication is fundamentally  

founded on rational inference of an idea from the words used in  

the text. The concept of legitimate deduction is always  

recognised. In Melbourne Corporation v. Commonwealth 49  ,  

Dixon, J. opined that constitutional implication should be based  

on considerations which are compelling. Mason, C.J., in  

Australian Capital Television Pty. Limited and others and  

the State of New South Wales v. The Commonwealth of  

Australia and another 50  [Political Advertising case], has  

ruled that there can be structural implications which are  

―logically or practically necessary for the preservation of the  

integrity of that structure‖. Any proposition that is arrived at  

                                                           49 [1947] 74 CLR 31 (Aust)  50 [1992] 177 CLR 106 (Aust)

45    

taking this route of interpretation must find some resting pillar or  

strength on the basis of certain words in the text or the scheme  

of the text. In the absence of the same, it may not be permissible  

for a Court to deduce any proposition as that would defeat the  

legitimacy of reasoning. A proposition can be established by  

reading a number of articles cohesively, for that will be in the  

domain of substantive legitimacy.  Elaborating further, the Court  

proceeded to state that the said process has its own limitation for  

the Court cannot rewrite a constitutional provision. To justify the  

adoption of the said method of interpretation, there has to be a  

constitutional foundation.   

47. In Kuldip Nayar and others v. Union of India and  

others51, a Constitution Bench, while interpreting Article 80 of  

the Constitution of India, relied upon a passage from G.  

Narayanaswami v. G. Pannerselvam and others52. The said  

authority clearly lays down that Courts should interpret in a  

broad and generous spirit the document which contains the  

fundamental law of the land. The Court observed that it may be  

desirable to give a broad and generous construction to the  

constitutional provisions, but while doing so, the rule of ―plain  

                                                           51 (2006) 7 SCC 1  52 (1972) 3 SCC 717

46    

meaning‖ or ―literal‖ interpretation, which remains ―the primary  

rule‖, has also to be kept in mind. In the context of Article 80(4)  

of the Constitution in the context of ―the representatives of each  

State‖, the Court repelled the argument that it is inherent in the  

expression ―representative‖ that he/she must first necessarily be  

an elector in the State. It ruled that the ―representative‖ of the  

State is the person chosen by the electors who can be any person  

who, in the opinion of the electors, is fit to represent them.  

48. The Court, in Union of India v. Sankalchand Himatlal  

Sheth and another53, ruled that it is to be remembered that  

when the Court interprets a constitutional provision, it breathes  

life into the inert words used in the founding document. The  

problem before the Constitutional Court is not a mere verbal  

problem. ―Literalness‖, observed Frankfurter, J., ―may strangle  

meaning‖ and he went on to add in Massachusetts Bonding &   

Insurance Co. v. United States54 that ―there is no surer way to  

misread a document than to read it literally.‖ The Court cannot  

interpret a provision of the Constitution by making ―a fortress out  

of the dictionary‖. The significance of a constitutional problem is  

vital, not formal: it has to be gathered not simply by taking the  

                                                           53 (1977) 4 SCC 193  54 352 U.S. 128 (1956)

47    

words and a dictionary, but by considering the purpose and  

intendment of the framers as gathered from the context and the  

setting in which the words occur. The difficulty of gathering the  

true intent of the law giver from the words used in the statute  

was expressed by Holmes, J. in a striking and epigrammatic  

fashion when he said: ―Ideas are not often hard but the words are  

the devil55‖ and this difficulty is all the greater when the words to  

be construed occur in a constitutional provision, for, as pointed  

out by Cardozo, J., ―the process of constitutional interpretation is  

in the ultimate analysis one of reading values into its clauses.‖  

49. In this backdrop, it is necessary to state that the Court has  

an enormous responsibility when it functions as the final arbiter  

of the interpretation of the constitutional provision.   

50. We have discussed the concepts of supremacy of the  

Constitution and constitutional limitation, separation of powers,  

the ambit and scope of judicial review, judicial restraint, the  

progressive method adopted by the Court while interpreting  

fundamental rights and the expansive conception of such  

inherent rights.  We have also deliberated upon the interpretation  

of other constitutional provisions that really do not touch the  

                                                           55 R.E. Megarry, ‗A Second Miscellany-at-Law‘ (Stevens, London, 1973), p.152

48    

area of fundamental rights but are fundamental for constitutional  

governance and the duty of the Court is not to transgress the  

constitutional boundaries.  We may immediately add that in the  

case at hand, we are not concerned with the interpretation of  

such constitutional provisions which have impact on the  

fundamental rights of the citizens. We are concerned with the  

interpretation of certain provisions that relate to parliamentary  

privilege and what is protected by the Constitution in certain  

articles. This situation has emerged in the context of the Court‘s  

role to rely upon the reports of Parliamentary Standing  

Committees in the context of the constitutional provisions  

contained in Articles 105 and 122.   

J. A perspective on the role of Parliamentary Committees  

51. It is necessary to understand the role of the parliamentary  

standing Committees or ad hoc committees. They are constituted  

with certain purposes. The formation of committee has history.  

"Committees have been described as a primary organizational  

device whereby legislatures can accommodate an increase in the  

number of bills being introduced, while continuing to scrutinize  

legislation; handle the greater complexity and technical nature of  

bills under review without an exponential growth in size; develop

49    

"division of labours" among members for considering  

legislation...."56.  

52. Woodrow Wilson, the 28th President of the United States,  

was quoted as saying in 1885 that ―it is not far from the truth to  

say that Congress in session is Congress on public exhibition,  

whilst Congress in its Committee rooms is Congress at work57‖.  

This is because most of the work of Congress was referred to  

committees for detailed review to inform debate on the floor of the  

House.  

53. Former U.S. Representative James Shannon commented  

during a 1995 conference on the role of committees in Malawi's  

legislature:-  

"Around the world there is a trend to move  toward more reliance on committees to conduct the  work of parliament, and the greatest reason for this  trend is a concern for efficiency. The demands on a  modern parliament are numerous and it is not  possible for the whole house to consider all the  details necessary for performing the proper function  of a legislature.58"  

                                                           56  Source – Entering the Committee System: State Committee Assignments, Ronald D.  Hedlund, Political; Research Quarterly, Vol. 42, Issue 4, pp.597-625  57 Woodrow Wilson, ―Congressional Government‖, 1885, quoted in the JCOC Final Report,  

(Baltimore, the Johns Hopkins University Press, 1981) p.69  58 National Democratic Institute for International Affairs, Parliament‘s Orgainzation: The  

Role of Committees and Party Whips – NDI Workshop in Mangochi, Malawi, June 1995  (Washington : National Democratic Institute for International Affairs, 1995)

50    

54. Lord Campion in his book59 has explained the dual sense in  

which the word "Committee" was used in old parliamentary  

language:-  

"In early days it is not the body as a whole but each  single member that is meant by the term, 'the body  is described as the committee' to whom the bill is  committed. The formation of the terms is the same  as that of any other English word which denotes the  recipient in a bilateral relation of obligation, such as  trustee, lessee, nominee, appointee. The body is  usually referred to in the old authorities as  'committee'. But it was not long before it became  usual to describe the totality of those to whom a bill  was referred as a 'committee' in an abstract sense.  In both the English word emphasis the idea of  delegation and not that of representation in which  the German word aussehuss expresses."    

55. The utility of a Committee has been succinctly expressed by  

Lord Beaconsfield60:-  

"I do not think there is anyone who more values the  labour of parliamentary committees than myself.  They obtain for the country an extraordinary mass  of valuable information, which probably would not  otherwise be had or available, and formed, as they  necessarily are, of chosen men their reports are  pregnant with prudent and sagacious suggestion for  the improvements of the administration of affairs."  

56. The importance of Committees in today's democracy has  

further been detailed thus61:-  

                                                           59 "An Introduction to the Procedure of House of Commons"  60 Lord Beaconsfield in Hansard, 3rd Series, Vol.235 (1877) p. 1478

51    

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

                                                                                                                                                                                     61 "Growth of Committee System in the Central Legislature of India 1920-1947"

52    

fields of interest of the government increase day by  day."  

57. Also, in the said book, the following observations have been  

made with respect to the functions of Committees:-  

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

58. Today parliamentary committee systems have emerged as a  

creative way of parliaments to perform their basic functions. They  

serve as the focal point for legislation and oversight. In a number  

of parliaments, bills, resolutions and matters on specific issues  

are referred to specific committees for debate and  

recommendations are made to the House for further debate.  

Parliamentary committees have emerged as vibrant and central

53    

institutions of democratic parliaments of today's world.  

Parliaments across the globe set up their own rules on how  

committees are established, the composition, the mandate and  

how chairpersons are to be selected but they do have certain  

characteristics in common. They are usually a small group of  

MPs brought together to critically review issues related to a  

particular subject matter or to review a specific bill. They are  

often expected to present their observations and  

recommendations to the Chamber for final debate.  

59. Often committees have a multi-party composition. They  

examine specific matters of policy or government administration  

or performance. Effective committees have developed a degree of  

expertise in a given policy area, often through continuing  

involvement and stable memberships. This expertise is both  

recognized and valued by their colleagues. They are able to  

represent diversity as also reconcile enough differences to sustain  

recommendations for action. Also, they are important enough so  

that people inside and outside the legislature seek to influence  

outcomes by providing information about what they want and  

what they will accept. Furthermore, they provide a means for a

54    

legislative body to consider a wide range of topics in-depth and to  

identify politically and technically feasible alternatives.  

K. International position of Parliamentary Committees  

60. Before we proceed to dwell upon the said aspect in the  

Indian context, we think it apt to have a holistic view of the role  

of Parliamentary Standing Committees in a parliamentary  

democracy.  

61. History divulges that Parliamentary Standing Committees  

have been very vital institutions in most of the eminent  

democracies such as USA, United Kingdom, Canada, Australia,  

etc. Over the years, the committee system has come to occupy  

importance in the field of governance.   

K.1 Parliamentary Committees in England  

62.  British parliamentary history validates that parliamentary  

committees have existed in some form or the other since                    

the 14th century. Perhaps the committee system originated with  

the ‗triers and examiners of petitions‘ – they were individual  

members selected for drawing up legislations to carry into effect  

citizens‘ prayers that were expressed through petitions. By the  

middle of the 16th century, a stable committee system came  

into existence. These Parliamentary committees are sub-

55    

legislative organizations each consisting of small number of  

Members of Parliament from the House of Commons,  

or peers from the House of Lords, or a mix of both appointed to  

deal with particular areas or issues; most are made up of  

members of the Commons. 62  The majority of parliamentary  

committees are Select Committees which are designed to:-    

1. Superintend the work of departments and  agencies;  

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

3. Review and advise on the procedures,  workings and rules of the House.  

 63.  The other committees such as ―Departmental Select  

Committees‖ are designed to oversee and examine the work  

of individual government departments, ―Topical Select  

Committee‖ examines contemporary issues of significance and  

―Internal Select Committees‖ have responsibility with respect to  

the day-to-day running of Parliament.63 It helps the Parliament to  

have a very powerful network of committees to ensure executive  

accountability.   

K.2 Parliamentary Committees in United States of America   

64. Parliamentary Committees are essential to the effective  

operation of the Parliament in United States. Due to the high  

                                                           62  See http://www.parliament.uk/business/committees/  63  Id.

56    

volume and complexity of its work, the Senate divides its tasks  

among 20 permanent committees, 4 joint committees and  

occasionally temporary committees.  Although the Senate  

committee system is similar to that of the House of  

Representatives, it has its own guidelines within which each  

committee adopts its own rules.  This creates considerable  

variation among the panels. The chair of each committee and a  

majority of its members represent the majority party.  The chair  

primarily controls a committee‘s business.  Each party assigns its  

own members to committees, and each committee distributes its  

members among its sub-committees.64  The Senate places limits  

on the number and types of panels any one senator may serve on  

and chair. Committees receive varying levels of operating funds  

and employ varying numbers of aides.  Each hires its own  

staff.  The majority party controls most committee staff and  

resources, but a portion is shared with the minority.   

65. The role and responsibilities of Parliamentary committees in  

the United States of America are as follows:-  

(i) As “little legislatures,” committees monitor on-going  

governmental operations, identify issues suitable for legislative  

                                                           64 See https://www.britannica.com/topic/Congress-of-the-United-States for details.  

57    

review, gather and evaluate information and recommend courses  

of action to their parent body.   

(ii) The Committee membership enables members to develop  

specialized knowledge of the matters under their jurisdiction.   

(iii) Standing committees generally have legislative  

jurisdiction.  Sub-committees handle specific areas of the  

committee‘s work.  Select and joint committees generally handle  

oversight or housekeeping responsibilities.65  

(iv) Several thousand bills and resolutions are referred to  

committees during each 2-year Congress.  Committees select a  

small percentage for consideration, and those not addressed  

often receive no further action.  The bills that committees report  

help to set the Senate‘s agenda.  

66. When a committee or sub-committee favours a measure, it  

usually takes four actions: first it asks relevant executive  

agencies for written comments on the measure; second, it holds  

hearings to gather information and views from non-committee  

experts and at committee hearings, these witnesses summarize  

submitted statements and then respond to questions from the  

                                                           65  Other types of committees deal with the confirmation or rejection of presidential  nominees.  Committee hearings that focus on the implementation and investigation of  

programs are known as oversight hearings, whereas committee investigations examine  

allegations of wrongdoing.   

58    

senators; third, a committee meets to perfect the measure  

through amendments, and non-committee members sometimes  

attempt to influence the language; and fourth, when the language  

is agreed upon, the committee sends the measure back to the full  

Senate, usually along with a written report describing its  

purposes and provisions.  A committee‘s influence extends to its  

enactment of bills into law. A committee that considers a  

measure will manage the full Senate‘s deliberation on it.  Also, its  

members will be appointed to any conference committee created  

to reconcile its version of a bill with the version passed by the  

House of Representatives.    

 K.3 Parliamentary Committees in Canada  

67. The Parliament in Canada also functions through various  

standing committees established by Standing Orders of  

the House of Commons or the Senate. It studies matters referred  

to it by special order or, within its area of responsibility in the  

Standing Orders, may undertake studies on its own initiative.  

There are presently 23 standing committees (including two  

standing joint committees) in the House and 20 in the Canadian

60    

Members to be better informed about community views but in  

simply undertaking an inquiry, the committee may promote  

public debate on the subject at issue. The all-party composition  

of most committees and their propensity to operate across party  

lines are important features.68 This bipartisan approach generally  

manifests itself throughout the conduct of inquiries and the  

drawing up of conclusions. Committees oversee and scrutinise  

the Executive and contribute towards a better-informed  

administration and government policy-making process. 69  In  

respect of their formal proceedings, committees are microcosms  

and extensions of the Houses themselves, limited in their power  

of inquiry by the extent of the authority delegated to them and  

governed for the most part in their proceedings by procedures  

and practices which reflect those which prevail in the House by  

which they were appointed.   

L. Parliamentary Committees in India  

69. Having reflected upon the parliamentary committees and  

their role in other democracies, we may now proceed to deal  

with the parliamentary committees in India. The long freedom  

struggle in India was not just a movement to achieve freedom  

                                                           68  Id.   69  Id.  

61    

from British rule. It was as much a movement to free ourselves  

from the various social evils and socio-economic inequities and  

discriminations, to lift the deprived and the downtrodden from  

the sludge of poverty and to give them a stake in the overall  

transformation of the country. It was with this larger national  

objective that a democratic polity based on parliamentary  

system was conceived and formally declared in 1936 as ―the  

establishment of a democratic state,‖ a sovereign state which  

would promote and foster ―full democracy‖ and usher in a new  

social and economic order.   

70. The founding fathers of the Constitution perceived that  

such a system would respond effectively to the problems arising  

from our diversity as also to the myriad socio-economic factors  

that the nation was faced with. With that objective, in the  

political system that we established, prominence was given to  

the Parliament, the organ that directly represents the people  

and as such accountable to them.     

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

the Parliamentary Committee. The committee system in India, as  

has been stated in ―The Committee System in India :

62    

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 in charge of the  Department acting as the Chairman of the  Committee.  

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

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

63    

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.‖  

   72. In the said document, it has been observed thus in respect  

of the Standing Committees of Parliament:-  

―Standing Committees are those which are  periodically elected 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., scrutinise the functioning of the  Government as per their respective mandate. The  other category of Committees like the Rules  Committee, House Committee, Joint Committee on  Salaries and Allowances, etc. deal with matters  relating to the Houses and members.‖  

 73. The functions of the Parliament in modern times are not  

only diverse and complex in nature but also considerable in  

volume and the time at its disposal is limited. It cannot,  

therefore, give close consideration to all the legislative and other  

matters that come up before it. A good deal of its business is,  

therefore, transacted in the Committees of the House known as  

Parliamentary Committees. Parliamentary Committee means a

64    

Committee which is appointed or elected by the House or  

nominated by the Speaker and which works under the direction  

of the Speaker and presents its report to the House or to the  

Speaker.   

74. Founded on English traditions, the Indian Parliament‘s  

committee system has a vital role in the parliamentary  

democracy. Generally speaking, the 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,  

Department Related Standing Committees (DRSCs) and some  

other Committees too come under the category of Standing  

Committees. The ad hoc Committees are appointed for specific  

purposes as and when the need arises and they cease to exist as  

soon as they complete the work assigned to them. 70  The  

parliamentary committees are invariably larger in size and are  

recommendatory in nature. Be it stated, there are 24 Department  

                                                           70  The principal Ad hoc Committees are the Select and Joint Committees on Bills. Railway  

Convention Committee, Joint Committee on Food Management in Parliament House  Complex etc also come under the category of ad hoc Committees.

65    

Related Standing Committees covering under their jurisdiction all  

the Ministries/Departments of the Government of India. Each of  

these Committees consists of 31 Members - 21 from Lok Sabha  

and 10 from Rajya Sabha to be nominated by the Speaker, Lok  

Sabha and the Chairman, Rajya Sabha, respectively. The term of  

office of these Committees does not exceed one year.   

L.1 Rules of Procedure and Conduct of Business in Lok  Sabha  

 75. A close look at the functioning of these committees  

discloses the fact that the committee system is designed to  

enlighten Members of Parliament (MPs) on the whole range of  

governmental action including defence, external affairs,  

industry and commerce, agriculture, health and finance. They  

offer opportunities to the members of the Parliament to realize  

and comprehend the dynamics of democracy. The members of  

Parliament receive information about parliamentary workings as  

well as perspective on India‘s strengths and weaknesses  

through the detailed studies undertaken by standing  

committees. Indian parliamentary committees are a huge basin  

of information which are made available to the Members of  

Parliament in order to educate themselves and contribute ideas  

to strengthen the parliamentary system and improve

66    

governance. The committee system is designed to enhance  

the capabilities of Members of Parliament to shoulder  

greater responsibilities and broaden their horizons.   

76. As has been stated in the referral judgment with regard to  

the Parliamentary Committee, we may usefully refer to the Rules  

of Procedure and Conduct of Business in Lok Sabha (for short  

‗the Rules‘). Rule 2 of the Rules defines ―Parliamentary  

Committee‖. It reads as follows:-    

―2. (1) … ―Parliamentary Committee‖ means a  Committee which is appointed or elected by the  House or nominated by the Speaker and which  works under the direction of the Speaker and  presents its report to the House or to the Speaker  and the Secretariat for which is provided by the Lok  Sabha Secretariat.‖  

77.  From the referral judgment, we may reproduce the  

following paragraphs dealing with the relevant Rules:-  

―33. Chapter 26 of the Rules deals with  Parliamentary Committees and the matters  regarding appointment, quorum, decisions of the  committee, etc. There are two kinds of  

Parliamentary Committees: (i) Standing Committees,  and (ii) Ad hoc Committees. The Standing  Committees are categorised by their nature of  functions. The Standing Committees of the Lok  Sabha are as follows:  

(a) Financial Committees;  

(b) Subject Committees or departmentally related  Standing Committees of the two houses;

67    

(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;     34.  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 of  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  

Library Committee 9  

Rules Committee 15

68    

Apart from the above, there are various  departmentally related Standing Committees under  various Ministries.‖  

78. Rules 77 and 78 of the Rules read as under:-  

―77. (1) After the presentation of the final report of a  Select Committee of the House or a Joint Committee  of the Houses, as the case may be, on a Bill, the  member in charge may move—   

(a) that the Bill as reported by the Select  Committee of the House or the Joint Committee  of the Houses, as the case may be, be taken into  consideration; or   

(b) that the Bill as reported by the Select  Committee of the House or the Joint Committee  of the Houses, as the case may be, be re- committed to the same Select Committee or to a  new Select Committee, or to the same Joint  Committee or to a new Joint Committee with the  concurrence of the Council, either—   

(i) without limitation, or   

(ii) with respect to particular clauses or  amendments only, or   

(iii) with instructions to the Committee to make  some particular or additional provision in the  Bill, or   

(c) that the Bill as reported by the Select  Committee of the House or the Joint Committee  of the Houses, be circulated or recirculated, as  the case may be, for the purpose of eliciting  opinion or further opinion thereon:   

Provided that any member may object to any  such motion being made if a copy of the report  has not been made available for the use of  members for two days before the day on which  the motion is made and such objection shall

69    

prevail, unless the Speaker allows the motion to  be made.   

(2) If the member in charge moves that the Bill as  reported by the Select Committee of the House or  the Joint Committee of the Houses, as the case may  be, be taken into consideration, any member may  move Motions after presentation of Select/ Joint  Committee reports. 39 as an amendment that the  Bill be re-committed or be circulated or recirculated  for the purpose of eliciting opinion or further  opinion thereon.     78. The debate on a motion that the Bill as reported  by the Select Committee of the House or the Joint  Committee of the Houses, as the case may be, be  taken into consideration shall be confined to  consideration of the report of the Committee and  the matters referred to in that report or any  alternative suggestions consistent with the principle  of the Bill.‖    

79. Rule 270 of the Rules, which deals with the functions of the  

Parliamentary Committee meant for Committees of the Rajya  

Sabha, is relevant. It reads as follows:-  

―270. Functions.— Each of the Standing  Committees shall have the following functions,  namely—  

(a) to consider the Demands for Grants of the  related Ministries/Departments and report thereon.  The report shall not suggest anything of the nature  of cut motions;  

(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

70    

(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-to-day administration of the  related Ministries/Departments.‖  

80.  Rule 271 provides for the applicability of provisions relating  

to functions. Rule 274 deals with the report of the Committee.  

The said Rule reads as follows:-  

―274. Report of the Committee.— (1) The report of  

the Standing 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.‖  

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

report of the Committee together with the minutes of the dissent,  

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

the report is to have persuasive value. In this context, Rule 277 is  

worth quoting:-  

―277. Reports to have persuasive value.— The  

report of a Standing Committee shall have  persuasive value and shall be treated as considered  advice given by the Committee.‖‖   

71    

The aforesaid rule makes it quite vivid that the report of the  

Committee is treated as an advice given by the Committee and it  

is meant for the Parliament.  

M. Parliamentary privilege    82. Black's Law Dictionary, 6th Ed., 1990, p. 1197, defines  

―privilege‖ as "a particular and peculiar benefit or advantage  

enjoyed by a person, company, or class, beyond the common  

advantages of other citizens. An exceptional or extraordinary  

power or exemption. A peculiar right, advantage, exemption,  

power, franchise, or immunity held by a person or class, not  

generally possessed by others."  

83. Parliamentary privilege is defined by author Erskine May in  

Erskine May's Treatise on the Law, Privileges, Proceedings and  

Usage of Parliament:-  

―Parliamentary privilege is the sum of the peculiar  rights enjoyed by each House collectively... and by  Members of each House individually, without  which they could not discharge their functions,  and which exceed those possessed by other bodies  or individuals. Thus privilege, though part of the  law of the land, is to a certain extent an exemption  from the general law.‖71    

84. The concept of Parliamentary Privilege has its origin in  

Westminster, Britain in the 17th century with the passage of the  

                                                           71 May, 22nd ed., p. 65. For other definitions of privilege, see Maingot, 2nd ed., pp. 12-3.

72    

Bill of Rights in 1689. Article IX of the Bill of Rights, which laid  

down the concept of Parliamentary Privilege, reads as under:-  

―That the freedom of speech and debates or  proceedings in Parliament ought not to be  impeached or questioned in any court or place  out of Parliament.‖  

 85. Parliamentary Privilege was introduced to prevent any  

undue interference in the working of the Parliament and thereby  

enable the members of the Parliament to function effectively and  

efficiently without unreasonable impediment. Till date,  

Parliamentary Privilege remains an important feature in any  

parliamentary democracy. The concept of Parliamentary Privilege  

requires a balancing act of two opposite arguments as noted by  

Thomas Erskine May:-  

―On the one hand, the privileges of Parliament  are rights 'absolutely necessary for the due  execution of its powers'; and on the other, the  privilege of Parliament granted in regard of  public service 'must not be used for the danger  of the commonwealth.‖72    

M.1 Parliamentary privilege under the Indian Constitution    

86. Having dealt with the role of the Parliamentary Standing  

Committee or Parliamentary Committees, it is necessary to  

understand the status of Parliamentary Committee and the  

privileges it enjoys in the Indian context. Article 105 of the                                                              72 Erskine May 24th Edition Pg. 209

74    

in the committee.  Freedom of speech that is available to the  

members on the floor of the legislature is quite distinct from the  

freedom which is available to the citizens under Article 19(1)(a) of  

the Constitution. Members of the Parliament enjoy full freedom in  

respect of what they speak inside the House. Article 105(4)  

categorically stipulates that the provisions of clauses (1), (2)               

and (3) shall apply in relation to persons, who by virtue of this  

Constitution, have the right to speak in, and otherwise to take  

part in the proceedings of, a House of the Parliament or any  

committee thereof as they apply in relation to the members of the  

Parliament.  Thus, there is complete constitutional protection. It  

is worthy to note that Article 118 provides that each House of the  

Parliament may make rules for regulating, subject to the  

provisions of this Constitution, its procedure and the conduct of  

its business. Condignly analysed, the Parliament has been  

enabled by the Constitution to regulate its procedure apart from  

what has been stated directly in the Constitution.    

88. Article 105 of the Constitution is read mutatis mutandis  

with Article 194 of the Constitution as the language in both the  

articles is identical, except that Article 105 employs the word  

―Parliament‖ whereas Article 194 uses the words ―Legislature of a

75    

State‖. Therefore, the interpretation of one of these articles would  

invariably apply to the other and vice versa.  

89. In U.P. Assembly case [Special Reference No. 1 of 1964]73,  

the controversy pertained to the privileges of the House in  

relation to the fundamental rights of the citizens. The decision  

expressly started that the Court was not dealing with the internal  

proceedings of the House. We may profitably reproduce two  

passages from the said judgment:-   

―108. … The obvious answer to this contention is  that we are not dealing with any matter relating to  the internal management of the House in the  present proceedings. We are dealing with the power  of the House to punish citizens for contempt alleged  to have been committed by them outside, the four  walls of the House, and that essentially raises  different considerations.       x  x  x  x  x    

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

                                                           73 AIR 1965 SC 745

76    

before the Lucknow Bench of the Allahabad High  Court. …‖  

  90. The Court further observed:-  

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

91. In the said case, the Court was interpreting Article 194 of  

the Constitution and, in that context, it held:-  

―31. … While interpreting this clause, it is necessary  to emphasis that the provisions of the Constitution  subject to which freedom of speech has been  conferred on the legislators, are not the general  provisions of the Constitution but only such of them  as relate to the regulation of the procedure of the  Legislature. The rules and standing orders may  regulate the procedure of the Legislature and some  of the provisions of the Constitution may also  purport to regulate it; these are, for instance,  Articles 208 and 211. The adjectival clause  "regulating the procedure of the Legislature" governs  both the preceding clauses relating to "the  provisions of the Constitution" and "the rules and  standing orders." Therefore, clause (1) confers on  the legislators specifically the right of freedom of

77    

speech subject to the limitation prescribed by its  first part. It would thus appear that by making this  clause subject only to the specified provisions of the  Constitution, the Constitution-makers wanted to  make it clear that they thought it necessary to  confer on the legislators freedom of speech  separately and, in a sense, independently of Art.  19(1)(a). If all that the legislators were entitled to  claim was the freedom of speech and expression  enshrined in Art. 19(1)(a), it would have been  unnecessary to confer the same right specifically in  the manner adopted by Art. 194(1); and so, it would  be legitimate to conclude that Art. 19(1)(a) is not  one of the provisions of the Constitution which  controls the first part of clause (1) of Art. 194.‖  

    Proceeding further, the Court went on to say that clause (2)  

emphasises the fact that the said freedom is intended to be  

absolute and unfettered. Similar freedom is guaranteed to the  

legislators in respect of the votes they may give in the Legislature  

or any committee thereof. Interpreting clause (3), the Court ruled  

that the first part of this clause empowers the Legislatures of the  

States to make laws prescribing their powers, privileges and  

immunities; the latter part provides that until such laws are  

made, the Legislatures in question shall enjoy the same powers,  

privileges and immunities which the House of Commons enjoyed  

at the commencement of the Constitution. The Constitution-

makers, the Court observed, must have thought that the  

Legislatures would take some time to make laws in respect of

78    

their powers, privileges and immunities. During the interval, it  

was clearly necessary to confer on them the necessary powers,  

privileges and immunities. There can be little doubt that the  

powers, privileges and immunities which are contemplated by  

clause (3) are incidental powers, privileges and immunities which  

every Legislature must possess in order that it may be able to  

function effectively, and that explains the purpose of the latter  

part of clause (3).  The Court stated that all the four clauses of  

Article 194 are not in terms made subject to the provisions  

contained in Part III. In fact, clause (2) is couched in such wide  

terms that in exercising the rights conferred on them by clause  

(1), if the legislators by their speeches contravene any of the  

fundamental rights guaranteed by Part III, they would not be  

liable for any action in any court.  It further said:-  

―36. … In dealing with the effect of the provisions  contained in clause (3) of Article 194, wherever it  appears that there is a conflict between the said  provisions and the provisions pertaining to  fundamental rights, an attempt win have to be  made to resolve the said conflict by the adoption of  the rule of harmonious construction. …‖  

 92. Dealing with the plenary powers of the legislature, the Court  

ruled that these powers are controlled by the basic concepts of  

the written Constitution itself and can be exercised within the

79    

legislative fields allotted to their jurisdiction by the three Lists  

under the Seventh Schedule; but beyond the Lists, the  

Legislatures cannot travel. They can no doubt exercise their  

plenary legislative authority and discharge their legislative  

functions by virtue of the powers conferred on them by the  

relevant provisions of the Constitution; but the basis of the power  

is the Constitution itself. Besides, the legislative supremacy of  

our Legislatures including the Parliament is normally controlled  

by the provisions contained in Part III of the Constitution. If the  

Legislatures step beyond the legislative fields assigned to them,  

or while acting within their respective fields, they trespass on the  

fundamental rights of the citizens in a manner not justified by  

the relevant articles dealing with the said fundamental rights,  

their legislative actions are liable to be struck down by the Courts  

in India. Therefore, it is necessary to remember that though our  

Legislatures have plenary powers, yet they function within the  

limits prescribed by the material and relevant provisions of the  

Constitution.   

93. Adverting to Article 212(1) of the Constitution, the Court  

held that the said Article seems to make it possible for a citizen to  

call in question in the appropriate court of law the validity of any

80    

proceedings inside the legislative chamber if his case is that the  

said proceedings suffer not from mere irregularity of procedure,  

but from an illegality. If the impugned procedure is illegal and  

unconstitutional, it would be open to be scrutinised in a court of  

law, though such scrutiny is prohibited if the complaint against  

the procedure is no more than this that the procedure was  

irregular. That again is another indication which may afford some  

assistance in construing the scope and extent of the powers  

conferred on the House by Article 194(3).  

94. In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and  

others 74 , the Court, after referring to U.P. Assembly case  

(Special Reference No. 1 of 1964), observed that the privileges  

of the Parliament are rights which are ―absolutely necessary for  

the due execution of its powers‖ which are enjoyed by individual  

members as the House would not be able to perform its functions  

without unimpeded use of the services of its members and also  

for the protection of its members and the vindication of its own  

authority and dignity.  The Court, for the said purpose, referred  

to May‘s Parliamentary Practice. Parliamentary privilege  

conceptually protects the members of Parliament from undue  

                                                           74 (2007) 3 SCC 184

81    

pressure and allows them freedom to function within their  

domain regard being had to the idea of sustenance of legislative  

functionalism.  The aforesaid protection is absolute.    

M.2 Judicial review of parliamentary proceedings and its  privilege  

 95. Commenting upon the effect of parliamentary privilege, the  

House of Lords in the case of Hamilton v. Al Fayed75 pointed  

out that the normal impact of parliamentary privilege is to  

prevent the Court from entertaining any evidence, cross-

examination or submissions which challenge the veracity or  

propriety of anything done in the course of parliamentary  

proceedings.   

96. With regard to the role of the Court in the context of  

parliamentary privileges, Lord Brougham, in the case of  

Wellesley v. Duke of Beaufort 76 , has opined that it is  

incumbent upon the Courts of law to defend their high and  

sacred duty of guarding themselves, the liberties and the  

properties of the subject, and protecting the respectability and  

the very existence of the Houses of Parliament themselves,  

against wild and extravagant and groundless and inconsistent  

notions of privilege.  

                                                           75 [2001] 1 AC 395 at 407  76 [1831] Eng R 809 : (1831) 2 Russ & My 639: (1831) 39 ER 538   

82    

97. The 1999 UK Joint Committee report offers a useful  

analysis of the respective roles to be played by the Parliament  

and the Courts in advancing the law of parliamentary privilege:-  

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

98. With respect to the position of parliamentary privileges and  

the role of the Courts in Canada, the Supreme Court of Canada  

in the case of New Brunswick Broadcasting Co. v. Nova Scotia  

(Speaker of the House of Assembly)77 opined that the Canadian  

legislative bodies possess such inherent privileges as may be  

necessary to their proper functioning and that the said privileges  

are part of the fundamental law of the land and are, hence,  

constitutional. Further, the Court observed that the Courts have  

                                                           77 [1993] 1 SCR 319

83    

the power to determine if the privilege claimed is necessary to the  

capacity of the legislature to function, but have no power to  

review the correctness of a particular decision made pursuant to  

the privilege. In the case of Harvey v. New Brunswick (Attorney  

General)78, the Court has held that in order to prevent abuses in  

the guise of privilege from trumping legitimate Charter interests,  

the Courts must inquire into the legitimacy of a claim of  

parliamentary privilege.   

99. With respect to the review of parliamentary privilege, Lord  

Coleridge, C.J., in the case of Bradlaugh v. Gossett79, observed  

that the question as to whether in all cases and under all  

circumstances the Houses are the sole judges of their own  

privileges is not necessary to be determined in this case and that  

to allow any review of parliamentary privilege by a court of law  

may lead and has led to very grave complications.  However, the  

Law Lord remarked that to hold the resolutions of either House  

absolutely beyond any inquiry in any court of law may land in  

conclusion not free from grave complications and it is enough to  

say that in theory the question is extremely hard to solve.  

                                                           78 [1996] 2 SCR 876  79 (1884) 12 QBD 271 (D)

84    

100. Sir William Holdsworth in his book80  has also made the  

following observations with regard to review of Parliamentary  

privileges:-  

'There are two maxims or principles which govern  this subject. The first tells us that 'Privilege of  Parliament is part of the law of the land;' the second  that 'Each House is the judge of its own privileges'.  Now at first sight it may seem that these maxims  are contradictory. If privilege of Parliament is part of  the law of the land its meaning and extent must be  interpreted by the courts, just like any other part of  the law; and therefore, neither House can add to its  privileges by its own resolution, any more than it  can add to any other part of the law by such a  resolution.  

On the other hand if it is true that each House is  the sole judge of its own privileges, it might seem  that each House was the sole judge as to whether or  no it had got a privilege, and so could add to its  privileges by its own resolution. This apparent  contradiction is solved if the proper application of  these two maxims is attended to. The first maxim  applies to cases like Ashby v. White and Stockdale  v. Hansard (A), in which the question al issue was  the existence of a privilege claimed by the House.  

This is a matter of law which the courts must  decide, without paying any attention to a resolution  of the House on the subject. The second maxim  applies to cases like that of the Sheriff of Middlesex  (B), and Bradlaugh v. Gosset (D), in which an  attempt was made to question, not the existence but  the mode of user of an undoubted privilege. On this  matter the courts will not interfere because each  House is the sole judge of the question whether,  

                                                           80 "A History of English Law"

86    

not on the power to deal with contempt itself. A  close reading of the case demonstrates that the  Court treated the power to punish for contempt as a  privilege of the House. Speaking of the legislatures  

in India, it was stated: [U.P. Assembly case (Special  Reference No. 1 of 1964),  

―125. There is no doubt that the House has the  power to punish for contempt committed outside  

its chamber, and from that point of view it may  claim one of the rights possessed by a court of  record.‖  

(Emphasis supplied)  

268. Speaking of the Judges‘ power to punish for  

contempt, the Court observed: [U.P. Assembly case  (Special Reference No. 1 of 1964),]  

―We ought never to forget that the power to  punish for contempt large as it is, must always be  exercised cautiously, wisely and with  circumspection. Frequent or indiscriminate use of  this power in anger or irritation would not help to  sustain the dignity or status of the court, but may  sometimes affect it adversely. Wise Judges never  forget that the best way to sustain the dignity and  status of their office is to deserve respect from the  public at large by the quality of their judgments, the  fearlessness, fairness and objectivity of their  approach, and by the restraint, dignity and  decorum which they observe in their judicial  

conduct. We venture to think that what is true of the  judicature is equally true of the legislatures.‖    

And again:-     

―269. It is evident, therefore, that in the opinion of  

the Court in U.P. Assembly case (Special Reference  No. 1 of 1964), legislatures in India do enjoy the  power to punish for contempt. It is equally clear  that while the fact that the House of Commons

87    

enjoyed the power to issue unspeaking warrants in  its capacity of a court of record was one concern,  what actually worried the Court was not the source  

of the power per se, but the ―judicial‖ nature of  power to issue unspeaking warrant insofar as it was  directly in conflict with the scheme of the  Constitution whereby citizens were guaranteed  fundamental rights and the power to enforce the  fundamental rights is vested in the courts. It was  not the power to punish for contempt about which  the Court had reservations. Rather, the  abovequoted passage shows that such power had  been accepted by the Court. The issue decided  concerned the non-reviewability of the warrant  issued by the legislature, in the light of various  constitutional provisions.‖     

104. After referring to various other decisions, the Court  

summarized the principles relating to the parameters of judicial  

review in relation to exercise of parliamentary provisions. Some of  

the conclusions being relevant for the present purpose are  

reproduced below:-  

―(a) Parliament is a coordinate organ and its views  do deserve deference even while its acts are  amenable to judicial scrutiny;  

(b) The constitutional system of government abhors  absolutism and it being the cardinal principle of our  Constitution that no one, howsoever lofty, can claim  to be the sole judge of the power given under the  Constitution, mere coordinate constitutional status,  or even the status of an exalted constitutional  functionaries, does not disentitle this Court from  exercising its jurisdiction of judicial review of  actions which partake the character of judicial or  quasi-judicial decision;  

(c) The expediency and necessity of exercise of  power or privilege by the legislature are for the

88    

determination of the legislative authority and not for  determination by the courts;  

(d) The judicial review of the manner of exercise of  power of contempt or privilege does not mean the  said jurisdiction is being usurped by the judicature;  

 x  x  x  x  

(f) The fact that Parliament is an august body of  coordinate constitutional position does not mean  that there can be no judicially manageable  standards to review exercise of its power;  

(g) While the area of powers, privileges and  immunities of the legislature being exceptional and  extraordinary its acts, particularly relating to  exercise thereof, ought not to be tested on the  traditional parameters of judicial review in the same  manner as an ordinary administrative action would  be tested, and the Court would confine itself to the  acknowledged parameters of judicial review and  within the judicially discoverable and manageable  standards, there is no foundation to the plea that a  legislative body cannot be attributed jurisdictional  error;  

(h) The judicature is not prevented from scrutinising  the validity of the action of the legislature  trespassing on the fundamental rights conferred on  the citizens;   

(i) The broad contention that the exercise of  privileges by legislatures cannot be decided against  the touchstone of fundamental rights or the  constitutional provisions is not correct;  

(j) If a citizen, whether a non-Member or a Member  of the legislature, complains that his fundamental  rights under Article 20 or 21 had been contravened,  it is the duty of this Court to examine the merits of  the said contention, especially when the impugned  action entails civil consequences;  

(k) There is no basis to the claim of bar of exclusive  cognizance or absolute immunity to the  parliamentary proceedings in Article 105(3) of the  Constitution;

89    

(l) The manner of enforcement of privilege by the  legislature can result in judicial scrutiny, though  subject to the restrictions contained in the other  constitutional provisions, for example Article 122 or  212;  

(m) Article 122(1) and Article 212(1) displace the  broad doctrine of exclusive cognizance of the  legislature in England of exclusive cognizance of  internal proceedings of the House rendering  irrelevant the case-law that emanated from courts  in that jurisdiction; inasmuch as the same has no  application to the system of governance provided by  the Constitution of India;  

(n) Article 122(1) and Article 212(1) prohibit the  validity of any proceedings in legislature from being  called in question in a court merely on the ground  of irregularity of procedure;  

 x  x  x  x  

(r) Mere availability of the Rules of Procedure and  Conduct of Business, as made by the legislature in  exercise of enabling powers under the Constitution,  is never a guarantee that they have been duly  followed;  

(s) The proceedings which may be tainted on  account of substantive or gross illegality or  unconstitutionality are not protected from judicial  scrutiny;  

(t) Even if some of the material on which the action  is taken is found to be irrelevant, the court would  still not interfere so long as there is some relevant  material sustaining the action;  

(u) An ouster clause attaching finality to a  determination does ordinarily oust the power of the  court to review the decision but not on grounds of  lack of jurisdiction or it being a nullity for some  reason such as gross illegality, irrationality,  violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and  perversity.‖  

[Emphasis supplied]    

90    

105. The aforesaid summarization succinctly deals with the  

judicial review in the sense that the Constitutional Courts are not  

prevented from scrutinizing the validity of the action of the  

legislature trespassing on the fundamental rights conferred on  

the citizens; that there is no absolute immunity to the  

parliamentary proceeding under Article 105(3) of the  

Constitution; that the enforcement of privilege by the legislature  

can result in judicial scrutiny though subject to the restrictions  

contained in other constitutional provisions such as Articles 122  

and 212; that Article 122(1) and Article 212(1) prohibit the  

validity of any proceedings in the legislature from being called in  

question in a court merely on the ground of irregularity of  

procedure, and the proceedings which may be tainted on account  

of substantive or gross illegality or unconstitutionality are not  

protected from judicial scrutiny.  

106. We are presently concerned with the interpretation of two  

constitutional provisions, namely, Articles 122 and 105. It has  

been submitted by the learned counsel on behalf of the  

petitioners that the reports of parliamentary committees have  

various facets, namely, statement of fact made to the committee,  

statement of policy made to the committee, statements of fact

91    

made by Members of Parliament in Parliament and inference  

drawn from facts and findings of fact and law and, therefore, the  

Court is required to pose the question as to which of the above  

aspects of the Parliamentary Committee Reports can be placed  

reliance upon. The contention is structured on the foundation  

that committee reports are admissible in evidence and in public  

interest litigation in exercise of power under Article 32 for  

interpreting the legislation and directing the implementation of  

constitutional or statutory obligation by the executive.   

N. Reliance on parliamentary proceedings as external aids  

107.   A Constitution Bench in R.S. Nayak v. A.R. Antulay81,  

after referring to various decisions of this Court and development  

in the law, opined that the exclusionary rule is flickering in its  

dying embers in its native land of birth and has been given a  

decent burial by this Court. The Constitution Bench further  

observed that the basic purpose of all canons of the Constitution  

is to ascertain with reasonable certainty the intention of the  

Parliament and for the said purpose, external aids such as  

reports of special committee preceding the enactment, the  

existing state of law, the environment necessitating enactment of  

                                                           81 (1984) 2 SCC 183

92    

a legislation and the object sought to be achieved, etc. which the  

Parliament held the luxury of availing should not be denied to the  

Court whose primary function is to give effect to the real  

intention of the legislature in enacting a statute.  The Court was  

of the view that such a denial would deprive the Court of a  

substantial and illuminating aid to construction and, therefore,  

the Court decided to depart from the earlier decisions and held  

that reports of committees which preceded the enactment of a  

law, reports of Joint Parliamentary Committees and a report of a  

commission set up for collecting information can be referred to as  

external aids of construction.  

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

of Ministers in Parliament are referred to on certain occasions for  

limited purposes. A Constitution Bench in State of West Bengal  

v. Union of India82 has opined that it is, however, well settled  

that the Statement of Objects and Reasons accompanying a Bill,  

when introduced in Parliament, cannot be used to determine the  

true meaning and effect of the substantive provisions of the  

statute. They cannot be used except for the limited purpose of  

understanding the background and the antecedent state of  

                                                           82 AIR 1963 SC 1241

93    

affairs leading up to the legislation. The same cannot be used as  

an aid to the construction of the enactment or to show that the  

legislature did not intend to acquire the proprietary rights vested  

in the State or, in any way, to affect the State Governments‘  

rights as owners of minerals. A statute, as passed by the  

Parliament, is the expression of the collective intention of the  

legislature as a whole, and any statement made by an individual,  

albeit a Minister, of the intention and objects of the Act cannot be  

used to cut down the generality of the words used in the statute.  

109. In K.P. Varghese v. Income Tax Officer, Ernakulam and  

another83, the Court, while referring to the budget speech of the  

Minister, ruled that speeches made by members of legislatures on  

the floor of the House where a Bill for enacting a statutory  

provision is being debated are inadmissible for the purpose of  

interpreting the statutory provision.  But the Court made it clear  

that the speech made by the mover of the Bill explaining the  

reasons for introducing the Bill can certainly be referred to for  

ascertaining the mischief sought to be remedied and the object  

and the purpose of the legislation in question.  Such a view, as  

per the Court, was in consonance with the juristic thought not  

                                                           83 (1981) 4 SCC 173

94    

only in the western countries but also in India as in the exercise  

of interpretation of a statute, everything which is logically  

relevant should be admitted. Thereafter, the Court acknowledged  

a few decisions of this Court where speeches made by the  

Finance Minister were relied upon by the Court for the purpose of  

ascertaining the reason for introducing a particular clause.  

Similar references have also been made in Dr. Ramesh  

Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and  

others 84 . That apart, parliamentary debates have also been  

referred to appreciate the context relating to the construction of a  

statute in Novartis AG v. Union of India and others85, State of  

Madhya Pradesh and another v. Dadabhoy’s New Chirimiri  

Ponri Hill Colliery Co. Pvt. Ltd.86, Union of India v. Steel  

Stock Holders Syndicate, Poona 87 , K.P. Varghese (supra),     

and Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income  

Tax and others88.  

110.   In Ashoka Kumar Thakur v. Union of India and  

others89 , this Court, after referring to Crawford on Statutory  

Construction, observed that the Rule of Exclusion followed in the  

                                                           84 (1996) 1 SCC 130  85 (2013) 6 SCC 1  86 (1972) 1 SCC 298  87 (1976) 3 SCC 108  88 (1999) 4 SCC 306  89 (2008) 6 SCC 1

95    

British Courts has been criticized by jurists as artificial and there  

is a strong case for whittling down the said rule. The Court was of  

the view that the trend of academic opinion and practice in the  

European system suggests that the interpretation of a statute  

being an exercise in the ascertainment of meaning, everything  

which is logically relevant should be admissible which implies  

that although such extrinsic materials shall not be decisive, yet  

they should at least be admissible. Further, the Court took note  

of the fact that there is authority to suggest that resort should be  

had to these extrinsic materials only in case of incongruities and  

ambiguities. Where the meaning of the words in a statute is  

plain, then the language prevails, but in case of obscurity or lack  

of harmony with other provisions and in other special  

circumstances, it may be legitimate to take external assistance to  

determine the object of the provisions, the mischief sought to be  

remedied, the social context, the words of the authors and other  

allied matters.  

111. In Additional Commissioner of Income Tax, Gujarat v.  

Surat Art Silk Cloth Manufacturers’ Association, Surat90,  

this Court held:-   

                                                           90 (1980) 2 SCC 31

96    

"It is legitimate to look at the state of law prevailing  leading to the legislation so as to see what was the  mischief at which the Act was directed. This Court  has on many occasions taken judicial notice of such  matters as the reports of parliamentary committees,  and of such other facts as must be assumed to have  been within the contemplation of the legislature  when the Acts in question were passed.‖  

 112. We have referred to these authorities to highlight that the  

reports or speeches have been referred to or not referred to for  

the purposes indicated therein and when the meaning of a  

statute is not clear or ambiguous, the circumstances that led to  

the passing of the legislation can be looked into in order to  

ascertain the intention of the legislature. It is because the reports  

assume significance and become relevant because they precede  

the formative process of a legislation.   

113. In Pepper v. Hart91, Lord Browne-Wilkinson, delivering the  

main speech, set out the test as follows:-  

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

                                                           91 [1992] UKHL 3 :  [1993] AC 593 : [1992] 3 WLR 1032

97    

 114. The Supreme Court of Canada in R. v. Vasil92 relied on  

parliamentary materials to interpret the phrase ―unlawful object‖  

in Section 212(c) of the Canadian Criminal Code. Speaking for  

the majority, Justice Lamer (as he then was) said:-  

―Reference to Hansard is not usually advisable.  However, as Canada has, at the time of codification,  subject to few changes, adopted the English Draft  Code of 1878, it is relevant to know whether Canada  did so in relation to the various sections for the  reasons advanced by the English Commissioners or  for reasons of its own.    Indeed, a reading of Sir John Thompson's  comments in Hansard of April 12, 1892, (House of  Commons Debates, Dominion of Canada, Session  1892, vol. I, at pp. 1378-85) very clearly confirms  that all that relates to murder was taken directly  from the English Draft Code of 1878. Sir John  Thompson explained the proposed murder sections  by frequently quoting verbatim the reasons given by  the Royal Commissioners in Great Britain, and it is  evident that Canada adopted not only the British  Commissioners' proposed sections but also their  reasons.‖     The Canadian authorities, as is noticeable from Re Anti-

Inflation Act (Canada)93, have relaxed the exclusionary rule.   

115. In Dharam Dutt and others v. Union of India and  

others94, the Court took note of the three Parliamentary Standing  

Committees appointed at different points of time which had  

                                                           92 [1981] 1 SCR 469, 121 D.L.R. (3d) 41  93 [1976] 2 SCR 373, 68 D.L.R. (3d) 452  94 (2004) 1 SCC 712

98    

recommended the taking over of Sapru House on the ground of  

declining standard of the Institution.  Further, this Court took  

note that it had already pointed out in an earlier part of this  

judgment that in the present case, successive parliamentary  

committees had found substance in the complaints received that  

an institution of national importance was suffering from  

mismanagement and maladministration and in pursuance of  

such PSC report, the Central Government acted on such findings.  

116. In Kuldip Nayar (supra), certain amendments in the  

Representation of the People Act, 1951 were challenged which  

had the effect of adopting an open ballot system instead of a  

secret ballot system for elections to the Rajya Sabha. Defending  

the amendment, the Union of India submitted a copy of a Report  

of the Ethics Committee of the Parliament which recommended  

the open ballot system for the aforesaid purpose. The Committee  

had noted the emerging trends of cross voting in elections for  

Rajya Sabha and Legislative Councils in the State. It also made a  

reference to rampant allegations that large sums of money and  

other considerations encourage the electorate to vote in a  

particular manner sometimes leading to defeat of official  

candidates belonging to their own political party. In this context,

99    

the Court took note of the recommendations of the Committee  

Report while testing the vires of the impugned amendment.  

117. From the aforesaid, it clear as day that the Court can take  

aid of the report of the parliamentary committee for the purpose  

of appreciating the historical background of the statutory  

provisions and it can also refer to committee report or the speech  

of the Minister on the floor of the House of the Parliament if there  

is any kind of ambiguity or incongruity in a provision of an  

enactment. Further, it is quite vivid on what occasions and  

situations the Parliamentary Standing Committee Reports or the  

reports of other Parliamentary Committees can be taken note of  

by the Court and for what purpose. Relying on the same for the  

purpose of interpreting the meaning of the statutory provision  

where it is ambiguous and unclear or, for that matter, to  

appreciate the background of the enacted law is quite different  

from referring to it for the purpose of arriving at a factual finding.  

That may invite a contest, a challenge, a dispute and, if a contest  

arises, the Court, in such circumstances, will be called upon to  

rule on the same.   

118.  In the case at hand, what is urged by the learned counsel  

for the petitioners is that though no interpretation is involved, yet

100    

they can refer to the report of the Parliamentary Standing  

Committee to establish a fact which they have pleaded and  

asserted in the writ petition.  According to them, the committees  

are constituted to make the executive accountable and when the  

public interest litigation is preferred to safeguard the public  

interest, the report assumes great significance and it is extremely  

necessary to refer to the same to arrive at the truth of the  

controversy. In such a situation, they would contend that the  

question of aid does not relate to any kind of parliamentary  

privilege. It is the stand of the petitioners that they do not intend  

to seek liberty from the Parliament or the Parliamentary  

Committee to be questioned or cross examined. In fact, reliance  

of the report has nothing to do with what is protected by the  

Constitution under Article 105. The court proceedings are  

independent of the Parliament and based on multiple inputs,  

materials and evidence and in such a situation, the parties are at  

liberty to persuade the Court to come to a determination of facts  

and form an opinion in law at variance with the parliamentary  

committee report. The learned counsel for the petitioners would  

further submit that advancing submissions relying on the report  

would not come within the scope of parliamentary privilege.  

101    

O. Section 57(4) of the Indian Evidence Act  

119. The learned counsel for the petitioners propound that under  

Section 57(4) of the Evidence Act, the parliamentary standing  

committee report can be judicially taken note of as such report  

comes within the ambit of the said provision.   

120. To appreciate the stand, it is necessary to scan the relevant  

sub-section (4) of Section 57 of the Evidence Act.  It reads as  

follows:-  

“57. Facts of which Court must take judicial  notice:- The Court shall take judicial notice of the  following facts:    

x x  x  x  x  x  x  x   x x  x  x  x  x  x  x  x x  x  x  x  x  x  x  

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

121.  Section 57 is a part of Chapter III of the Evidence Act which  

deals with "Facts which need not be proved". Section 57 rests on  

the assumption that the facts scripted in the thirteen sub-

sections are relevant under any one or more Sections of                 

Chapter II which deals with "relevancy of facts". Thus, Section 57,  

by employing the words "shall", casts an obligation upon the

102    

Courts to take judicial notice of the said facts. Section 57, sub-

section (4) of the Evidence Act casts an obligation on the Courts  

to take judicial notice of the course of proceedings of Parliament.  

122. This Court, in Sole Trustee Lok Shikshana Trust v.  

Commissioner of Income Tax, Mysore 95 , has observed that  

Section 57, sub-section (4) enjoins upon the Courts to take  

judicial notice of the course of proceedings of Parliament on the  

assumption that it is relevant.    

123. There can be no dispute that parliamentary standing  

committee report being in the public domain is a public  

document. Therefore, it is admissible under Section 74 of the  

Evidence Act and judicial notice can be taken of such a  

document as envisaged under Section 57(4) of the Evidence Act.  

There can be no scintilla of doubt that the said document can be  

taken on record.  As stated earlier, it can be taken aid of to  

understand and appreciate a statutory provision if it is unclear,  

ambiguous or incongruous.  It can also be taken aid of to  

appreciate what mischief the legislative enactment intended to  

avoid. Additionally, it can be stated with certitude that there can  

be a fair comment on the report and a citizen in his own manner  

                                                           95

(1976) 1 SCC 254

103    

can advance a criticism in respect of what the report has stated.   

Needless to emphasise that the right to fair comment is  

guaranteed to the citizens. It is because freedom of speech, as  

permissible within constitutional parameters, is essential for all  

democratic institutions. Fair comments show public concern and,  

therefore, such comments cannot be taken exception to. That is  

left to public opinion and perception on which the grand pillar of  

democracy is further strengthened. And, in all such  

circumstances, the question of parliamentary privilege would not  

arise.   

124. In the case at hand, the controversy does not end there  

inasmuch as the petitioners have placed reliance upon the  

contents of the parliamentary standing committee report and the  

respondents submit that they are forced to controvert the same.   

Be it clearly stated, the petitioners intend to rely on the contents  

of the report and invite a contest. In such a situation, the Court  

would be duty bound to afford the respondents an opportunity of  

being heard in consonance with the principles of natural justice.  

This, in turn, would give rise to a very peculiar situation as the  

respondents would invariably be left with the option either to: (i)  

accept, without contest, the opinion expressed in the

104    

parliamentary standing committee report and the facts stated  

therein; or (ii) contest the correctness of the opinion of the  

parliamentary standing committee report and the facts stated  

therein. In the former scenario, the respondents at the very least  

would be put in an inequitable and disadvantageous position. It  

is in the latter scenario that the Court would be called upon to  

adjudicate the contentious facts stated in the report. Ergo,  

whenever a contest to a factual finding in a PSC Report is likely  

and probable, the Court should refrain from doing so. It is one  

thing to say that the report being a public document is  

admissible in evidence, but it is quite different to allow a  

challenge.   

125. It is worthy to note here that there is an intrinsic difference  

between parliamentary proceedings which are in the nature of  

statement of a Minister or of a Mover of a bill made in the  

Parliament for highlighting the purpose of an enactment or, for  

that matter, a parliamentary committee report that had come into  

existence prior to the enactment of a law and a  

contestable/conflicting matter of ―fact‖ stated in the  

parliamentary committee report. It is the parliamentary  

proceedings falling within the former category of which Courts

105    

are enjoined under Section 57, sub-section (4) to take judicial  

notice of, whereas, for the latter category of parliamentary  

proceedings, the truthfulness of the contestable matter of fact  

stated during such proceedings has to be proved in the manner  

known to law.   

126. This again brings us to the hazardous zone wherein taking  

judicial notice of parliamentary standing committee reports for a  

factual finding will obviously be required to be proved for  

ascertaining the truth of a contestable matter of fact stated in the  

said report.  

127. Taking judicial notice of the Parliamentary Standing  

Committee report can only be to the extent that such a report  

exists.  As already stated, the said report can be taken aid of for  

understanding the statutory provision wherever it is felt so  

necessary or to take cognizance of a historical fact that is  

different from a contest. The word ―contest‖, according to Black‘s  

Law Dictionary, means to make defence to an adverse claim in a  

Court of law; to oppose, resist or dispute; to strive to win or hold;  

to controvert, litigate, call in question, challenge to defend.  This  

being the meaning of the word ―contest‖, the submission to

106    

adjudge the lis on the factual score of the report is to be  

negatived.   

P. The decisions in which parliamentary standing  committee report/s have been referred to  

128. Before we proceed to record our conclusions, it is necessary  

to allude to various authorities cited by the petitioners herein  

highlighting the occasions where this Court has referred to and  

taken note of various Parliamentary Committee reports. In  

Catering Cleaners of Southern Railway v. Union of India  

and another96, the catering cleaners of the Southern Railway  

filed a writ petition praying for abolition of the contract labour  

system and their absorption as direct employees of the principal  

employer, viz., the Southern Railway. This Court referred to the  

Parliamentary Committee Report under the Chairmanship of K.P.  

Tewari which had dealt with the question of abolishing the  

contract labour system and regularizing the services of the  

catering cleaners. The Committee had, inter alia, recommended  

that the government should consider direct employment of  

catering cleaners by the Railway Administration to avoid their  

exploitation.  

                                                           96 (1987) 1 SCC 700

107    

129. In State of Maharashtra v. Milind and others 97 , the  

issue was whether the tribe of 'Halba-Koshtis' were treated as  

'Halbas' in the specified areas of Vidarbha. This Court, in the said  

case, referred to the report of Joint Parliamentary Committee  

which did not make any recommendation to include 'Halba-

Koshti' in the Scheduled Tribes Order. Again, in Federation of  

Railway Officers Association (supra), this Court alluded to the  

reports and recommendations of several committees such as the  

Railways Reforms Committee in 1984 which recommended the  

formation of new four Zones; the Standing Committee Report of  

Parliament on Railway which recommended for creation of new  

zones on the basis of work load, efficiency and effective  

management and the Rakesh Mohan Committee Report which  

had suggested that the formation of additional zones would be of  

dubious merit and would add substantial cost and be of little  

value to the system.  

130. In Ms. Aruna Roy and Others v. Union of India and  

others98, the education policy framed by NCERT was challenged  

by the petitioners. This Court while dealing with the said issue,  

referred, in extensio, to the Parliamentary committee report which  

                                                           97 (2001) 1 SCC 4  98 (2002) 7 SCC 368

108    

had made several recommendations in this regard. After so  

referring to the report, the Court was of the view that if the  

recommendations made by the Parliamentary Committee are  

accepted by the NCERT and are sought to be implemented, it  

cannot be stated that its action is arbitrary or unjustified.  

131. In M.C. Mehta v. Union of India and others99, this Court  

referred to the report of the Standing Committee of Parliament on  

Petroleum & Natural Gas which expressed concern over the  

phenomenal rise of air pollution and made some  

recommendations. The Court, in this case, made it clear that it  

had mentioned the report only for indicating that the Government  

was and is proactively supporting the reduction of vehicular  

pollution by controlling the emission norms and complying with  

the Bharat Stage standards.  

132.  In Lal Babu Priyadarshi v. Amritpal Singh 100 , while  

dealing with a Trade Mark case under various sections of the  

Trade and Merchandise Marks Act, 1958 [repealed by the Trade  

Marks Act, 1999 (47 of 1999), this Court referred to the Eighth  

Report on the Trade Marks Bill, 1993 submitted by the  

Parliamentary Standing Committee which was of the opinion that  

                                                           99 (2017) 7 SCC 243  100 (2015) 16 SCC 795

109    

any symbol relating to Gods, Goddesses or places of worship  

should not ordinarily be registered as a trade mark.  

133. The petitioners have also referred to other cases such as  

Gujarat Electricity Board v. Hind Mazdoor Sabha and  

others101, Modern Dental College and Research Centre and  

others v. State of Madhya Pradesh and others 102  and  

Krishan Lal Gera v. State of Haryana and others103 wherein  

also this Court has made a passing reference to reports of the  

Parliament Standing Committees.  

134. We have, for the sake of completeness, noted the decisions  

relied upon by the petitioners to advance their stand.  But it is  

condign to mention here that in the abovereferred cases, the  

question of contest/challenge never emerged. In all the cases, the  

situation never arose that warranted any contest amongst the  

competing parties for arriving at a particular factual finding.   

That being the position, the said judgments, in our considered  

opinion, do not render any assistance to the controversy in  

question.    

135. We have distinguished the said decisions, as we are  

disposed to think that a party can always establish his case on  

                                                           101 (1995) 5 SCC 27  102 (2016) 7 SCC 353  103 (2011) 10 SCC 529

110    

the materials on record and the Court can independently  

adjudicate the controversy without allowing a challenge to  

Parliamentary Standing Committee report. We think so as the  

Court has a constitutional duty to strike a delicate balance  

between the legislature and judiciary. It is more so when the  

issue does not involve a fundamental right that is affected by  

parliamentary action. In such a situation, we may deal with the  

concept of jurisprudential foundational principle having due  

regard to constitutional conscience. The perception of self-evolved  

judicial restraint and the idea of jurisprudential progression has  

to be juxtaposed for a seemly balance. There is no strait-jacket  

formula for determining what constitutes judicial restraint and  

judicial progressionism. Sometimes, there is necessity for the  

Courts to conceptualise a path that can be a wise middle path.  

The middle course between these two views is the concept of  

judicial engagement so that the concept of judicial restraint does  

not take the colour of judicial abdication or judicial passivism.  

Judicial engagement requires that the Courts maintain their  

constitutional obligation to remain the sentinel on qui vive. It  

requires a vigilant progressive judiciary for the rights and  

liberties of the citizens to be sustained. Thus, as long as a

111    

decision of a Court is progressive being in accord with the theory  

of judicial engagement, the approach would be to ensure the  

proper discharge of duty by the Constitutional Courts so as to  

secure the inalienable rights of the citizens recognized by the  

Constitution. A Constitutional Court cannot abdicate its duty to  

allow injustice to get any space or not allow real space to a  

principle that has certain range of acceptability. Stradford C.J.,  

speaking the tone and tenor in Jajbhay v Cassim 104 , has  

observed:-  

"Now the Roman-Dutch law, which we must apply,  is a living system capable of growth and  development to allow adaptation to the increasing  complexities and activities of modern civilised life.  The instruments of that development are our own  Courts of law. In saying that, of course, I do not  mean that it is permissible for a Court of law to  alter the law; its function is to elucidate, expound  and apply the law. But it would be idle to deny that  in the process of the exercise of those functions  rules of law are slowly and beneficially evolved."  

136.   In Miranda v. Arizona105, the Supreme Court of United  

States observed:-  

'That the Court's holding today is neither compelled  nor even strongly suggested by the language of the  Fifth Amendment, is at odds with American and  English legal history, and involves a departure from  a long line of precedent does not prove either that  

                                                           104 1939 AD 537 at p 542  105 384 U.S. 436 (1966)

112    

the Court has exceeded its powers or that the Court  is wrong or unwise in its present reinterpretation of  the Fifth Amendment. It does, however, underscore  the obvious -- that the Court has not discovered or  found the law in making today's decision, nor has it  derived it from some irrefutable sources; what it has  done is to make new law and new public policy in  much the same way that it has in the course of  interpreting other great clauses of the Constitution.  This is what the Court historically has done. Indeed,  it is what it must do, and will continue to do until  and unless there is some fundamental change in  the constitutional distribution of governmental  powers."  

137. In the Indian context, this Court has recognized the  

comprehensive, progressive and engaging role of Constitutional  

Courts in a catena of judgments starting from Lakshmi Kant  

Pandey v. Union of India106, Vishaka and others v. State of  

Rajasthan and others107, Prakash Singh and others v. Union  

of India and others108, Common Cause (A Regd. Society) v.  

Union of India109 and Shakti Vahini v. Union of India and  

others110. In all these judgments, the dynamic and spirited duty  

of the Supreme Court has been recognized and it has been  

highlighted that this Court ought not to shy away from its  

primary responsibility of interpreting the Constitution and other  

                                                           106 (1984) 2 SCC 244  107 (1997) 6 SCC 241  108 (2006) 8 SCC 1  109

 2018 (4) SCALE 1  110

 2018 (5) SCALE 51

113    

statutes in a manner that is not only legally tenable but also  

facilitates the progress and development of the avowed purpose of  

the rights-oriented Constitution. The Constitution itself being a  

dynamic, lively and ever changing document adapts to the  

paradigm of epochs. That being the situation, it is also for this  

Court to take a fresh look and mould the existing precepts to suit  

the new emerging situations. Therefore, the Constitutional Courts  

should always adopt a progressive approach and display a  

dynamic and spirited discharge of duties regard being had to the  

concepts of judicial statesmanship and judicial engagement, for  

they subserve the larger public interest. In the case at hand, the  

constitutional obligation persuades us to take the view that the  

Parliamentary Standing Committee Report or any Parliamentary  

Committee Report can be taken judicial notice of and regarded as  

admissible in evidence, but it can neither be impinged nor  

challenged nor its validity can be called in question.  

 Q. Conclusions  

138.  In view of the aforesaid analysis, we answer the referred  

questions in the following manner:-

114    

(i) Parliamentary Standing Committee report can be  

taken aid of for the purpose of interpretation of a  

statutory provision wherever it is so necessary and  

also it can be taken note of as existence of a  

historical fact.  

(ii) Judicial notice can be taken of the Parliamentary  

Standing Committee report under Section 57(4) of  

the Evidence Act and it is admissible under                 

Section 74 of the said Act.   

(iii) In a litigation filed either under Article 32 or  

Article 136 of the Constitution of India, this Court  

can take on record the report of the Parliamentary  

Standing Committee.  However, the report cannot  

be impinged or challenged in a court of law.  

(iv) Where the fact is contentious, the petitioner can  

always collect the facts from many a source and  

produce such facts by way of affidavits, and the  

Court can render its verdict by way of independent  

adjudication.    

(v) The Parliamentary Standing Committee report  

being in the public domain can invite fair comments

115    

and criticism from the citizens as in such a  

situation, the citizens do not really comment upon  

any member of the Parliament to invite the hazard  

of violation of parliamentary privilege.   

139. The reference is answered accordingly.  

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

for hearing.   

                                                        …..………………………CJI                                             (Dipak Misra)     

                                                                                                                       ….…..…...…….………….J.  

 (A.M. Khanwilkar)   New Delhi;  May 09, 2018

1    

REPORTABLE  

 IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION         

WRIT PETITION (CIVIL) NO. 558 OF 2012    

KALPANA MEHTA & ORS            .... PETITIONERS  

           VERSUS  

UNION OF INDIA & ORS             ....RESPONDENTS   

WITH   

WRIT PETITION (CIVIL) No. 921 OF 2013  

J  U  D  G  M  E  N  T  

Dr D Y CHANDRACHUD, J  

This judgment has been divided into sections to facilitate analysis. They are:  

A  Reference to the Constitution Bench  

B  Submissions   

C The Constitution  

D Parliamentary Standing Committees

E Parliamentary privilege

PART A     

2    

E.1 UK Decisions   

E.2 India   

F Separation of powers : a nuanced modern doctrine  

G A functional relationship  

H Conclusion   

A Reference to the Constitution Bench   

1 Two public interest petitions instituted before this Court under Article 32  

of the Constitution in 2012 and 2013 have placed into focus the process  

adopted for licensing vaccines1 to prevent cervical cancer. The petitioners  

allege that the process of licensing was not preceded by adequate clinical trials  

to ensure the safety and efficacy of the vaccines. Nearly twenty four thousand  

adolescent girls are alleged to have been vaccinated in Gujarat and before its  

bifurcation, in Andhra Pradesh without following safeguards. The trials are  

alleged to have been conducted under the auspices of a project initiated by the  

Sixth respondent. The drugs are manufactured and marketed by the Seventh  

and Eighth respondents. Each of them produces pharmaceuticals. The petition  

calls into question the role of the Drugs Controller General of India and the  

Indian Council of Medical Research. The administration of the vaccine is alleged  

to have resulted in serious health disorders. Deaths were reported.   

                                                           1 Human Papillomavirus (HPV)  

PART A     

3    

2 On 12 August 2014, a Bench of two judges formulated the questions  

which would have to be addressed in the course of the proceedings.2 They are:   

“(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 30.8.2013?  

(iii) What are the reasons for choosing certain 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 the 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 At the hearing, the petitioners relied upon the 81st Report of the  

Parliamentary Standing Committee dated 22 December 2014. The petitioners  

sought to place reliance on the Report so as to enable the Court to be apprised  

of the facts and to facilitate its conclusions and directions. This was objected to.   

4 The issue which arose before the Court was whether a report of a  

Parliamentary Standing Committee can be relied upon in a public interest  

                                                           2 Writ Petition (Civil) No. 558 of 2012

PART A     

4    

litigation under Article 32 or Article 226. If it could be adverted to, then an allied  

issue was the extent to which reliance could be placed upon it and its probative  

value. The then Attorney General for India, in response to a request for  

assistance, submitted that reports of Parliamentary Standing Committees are  

at best an external aid to construction, to determine the surrounding  

circumstances or historical facts for understanding the mischief sought to be  

remedied by legislation. The Union government urged that reports of  

Parliamentary Standing Committees are meant to guide the functioning of its  

departments and are a precursor to debates in Parliament. However, those  

reports (it was urged) cannot be utilized in court nor can they be subject to a  

contest between litigating parties.   

5 In an order dated 5 April 2017, a two judge Bench of this Court adverted  

to Articles 105 and 122 of the Constitution and observed thus:   

“69. The purpose of referring to the aforesaid Articles is that  

while exercising the power of judicial review or to place reliance  

on the report of the Parliamentary Standing Committee, the  

doctrine of restraint has to be applied by this Court as required  

under the 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  

Parliament or a member of the Parliamentary Standing  

Committee who enjoys freedom of speech and expression  

within the constitutional parameters and the rules or  

regulations framed by Parliament inside Parliament or the  

Committee is not to be adverted to by the court in a lis.”3   

                                                           3 Id, at pages 320-321              

PART A     

5    

6 The referring order notes that when a mandamus is sought, the Court has  

to address the facts which are the foundation of the case and the opposition, in  

response. If a Court were to be called upon to peruse the report of a  

Parliamentary Standing Committee, a contestant to the litigation may well seek  

to challenge it. Such a challenge, according to the Court, in the form of “an  

invitation to contest” the report of a Parliamentary Committee “is likely to disturb  

the delicate balance that the Constitution provides between the constitutional  

institutions”. Such a contest and adjudication would (in that view) be contrary to  

the privileges of Parliament which the Constitution protects. Hence according  

to the Court:  

“73…we are prima facie of the view that the Parliamentary  

Standing Committee report may not be tendered as a  

document to augment the stance on the factual score that a  

particular activity is unacceptable or erroneous. “  

A substantial question involving the interpretation of the Constitution having  

arisen, two questions have been referred to the Constitution Bench under Article  

145(3):  

“(i) Whether in a litigation filed before this Court either under  

Article 32 or Article 136 of the Constitution of India, the Court  

can refer to and place reliance upon the report of the  

Parliamentary Standing Committee; and

(ii) Whether such a report can be looked at for the purpose of  

reference and, if so, can there be restrictions for the purpose  

of reference regard being had to the concept of parliamentary  

privilege and the delicate balance between the constitutional  

institutions that Articles 105, 121 and 122 of the Constitution  

conceive?.”4  

                                                           4 Id, at page 322

PART B     

6    

B Submissions  

7 Leading the submissions on behalf of the petitioners, Mr Harish Salve,  

learned Senior Counsel underscored the importance of three constitutional  

principles:  

(i) Privileges of Parliament;  

(ii) Comity of institutions; and   

(iii) Separation of powers.   

Based on them, the submission is that reference to what transpires in a               

co-equal constitutional institution must be circumspect and consistent with due  

deference to and comity between institutions. Freedom of speech and  

expression is implicit in the working of every institution and it is that institution  

alone which can regulate its own processes. In Parliament, what speakers state  

is controlled by the House or, as the case may be, by its Committee and a  

falsehood in Parliament is punishable by that institution alone. It has been urged  

that if what is stated in a report of a Parliamentary Standing Committee were to  

be impeached in a court of law, that would affect the control of the Committee  

and of Parliament itself. The functions performed by Parliament and by the  

judiciary as two co-equal branches are, it is urged, completely different.  

Parliamentary business is either for the purpose of enforcing accountability of  

the government or to enact legislation. The function of judicial institutions is  

adjudicatory. Courts resolve a lis on objective satisfaction and have a duty to

PART B     

7    

act judicially. Courts would not, it has been urged, receive as evidence of facts  

any material whose truth or integrity cannot be assailed in court.   

8 On the above conceptual foundation, Mr Salve urged that the report of a  

Parliamentary Standing Committee can be relied upon in a judicial proceeding  

in two exceptional situations:  

(i) Where it becomes necessary for the court to examine the legislative history  

of a statutory provision;   

(ii)  As a source from which the policy of the government, as reflected in the  

statements made by a Minister before the House can be discerned; and  

(iii) Reports of Parliamentary Standing Committees are meant for  

consideration before Parliament and can only be regarded as “considered  

advice” to the House.   

Except in the two situations enumerated above, no petition seeking a  

mandamus can be brought before the court on the basis of such a report for the  

reason that (i) No right can be founded on the recommendation of a House  

Committee; and (ii) Relying on such a report may result in a challenge before  

the court, impinging upon Parliamentary privileges.   

9 Mr K K Venugopal, the learned Attorney General for India has supported  

the adoption of a rule of exclusion, based on the privileges of the legislature,

PART B     

8    

separation of powers and as a matter of textual interpretation of the  

Constitution. In his submission:   

I Committees of Parliament being an essential adjunct to Parliament, and  

their reports being for the purpose of advising and guiding Parliament in  

framing laws and the executive for framing policies, it would be a breach  

of privilege of Parliament to judicially scrutinize and/or review these  

reports for any purpose whatsoever;  

II The broad separation of powers, which is a part of the basic structure of  

the Constitution of India, would prevent Courts from subjecting the reports  

of Parliamentary Standing Committees to scrutiny or judicial review; and  

III A conjoint reading of Articles 105 and 122 of the Constitution would  

establish that, expressly or by necessary implication, there is a bar on the  

Courts from scrutinizing or judicially reviewing the functioning or reports of  

the Committees of Parliament.      

10 Refuting the submissions which have been urged by the Attorney General  

and on behalf of the pharmaceutical companies, Mr. Colin Gonsalves, learned  

Senior Counsel urges that there can be no objection to reliance being placed  

on the Report of a Parliamentary Standing Committee where (as in the present  

case) there is no attempt   

(i) to criticize Parliament;  

(ii) to summon a witness; or

PART B     

9    

(iii) to breach a privilege of the legislating body.  

The Report of a Parliamentary Standing Committee is (it is urged) relied upon  

only for the court to seek guidance from it. The court may derive such support  

in whichever manner it may best regard in the interest of justice, to advance a  

cause which has been brought in a social action litigation. According to Mr  

Gonsalves, the core of the submission (urged by Mr Salve) is that because his  

clients object to the findings in the Report, it becomes a contentious issue. Mr  

Gonsalves submits that this Court should not allow what in substance is an  

argument for a black out against the highest court taking notice of the report in  

its PIL jurisdiction. The submission is that the Court need not treat any of the  

facts contained in the Report as conclusive except those that are permitted by  

Section 57 of the Indian Evidence Act 1872. No mandamus is sought that the  

recommendations of the Parliamentary Committee be enforced. The Court, it  

has been urged, will not be invited to comment upon the Report even if it were  

not to agree with the contents of the Report. Learned Counsel urged that the  

legislative function of Parliament is distinct from the oversight which it exercises  

over government departments. An issue of parliamentary privileges arises when  

the court makes a member of Parliament or of a Parliamentary Committee liable  

in a civil or criminal action for what is stated in Parliament. Such is not the  

position here. Mr Gonsalves submitted that in significant respects, our  

Constitution marks a historical break from the English Parliamentary tradition.  

India has adopted the doctrine of constitutional supremacy and not

PART B     

10    

Parliamentary sovereignty, as in the UK. Hence, cases decided under the  

English Common Law cannot be transplanted, without regard to context, in  

Indian jurisprudence on the subject. The unrestrained use of parliamentary  

privileges, it has been urged, stands modified in the Indian context, which is  

governed by constitutional supremacy. In matters involving public interest or  

issues of a national character, both the institutions – Parliament and the courts  

– must act together. As a matter of fact, Parliament has placed the Report of its  

Standing Committee in the public domain. It is ironical, Mr Gonsalves urges,  

that in the present case, it is the executive which seeks to protect itself from  

disclosure in the guise of parliamentary privileges. Finally, it has been urged  

that the public interest jurisdiction is not adversarial and constitutes a distinctly  

Indian phenomenon. Where the fulfilment and pursuit of a constitutional goal,  

national purpose or public interest is in issue, both Parliament and the judiciary  

will act in comity. No issue arises here in relation to the separation of powers or  

breach of Parliamentary privilege. On the contrary, it has been submitted that  

the approach of the respondents is not in accordance with the march of  

transparency in our law.   

11 Mr Anand Grover, learned Senior Counsel submitted that if there is no  

dispute that a certain statement was made before Parliament or, as the case  

may be, a Parliamentary Standing Committee, such a statement can be relied

upon as a fact of it being stated in Parliament. The truth of the statement is, in  

the submission of the learned Senior Counsel, another and distinct issue. The

PART C     

11    

Report is uncontentious not as regards the truth of its contents but of it having  

been made. The court in the exercise of its power of judicial review will not hold

that an inference drawn by a Parliamentary Committee is wrong. But the court  

can certainly look at a statement where there is no dispute of it having been  

made.   

12 Mr Shyam Divan and Mr Gourab Banerji, learned Senior Counsel have  

broadly pursued the same line of argument as the learned Attorney General for  

India and Mr Harish Salve.         

C The Constitution   

13 Articles 105, 118, 119 and 121 are comprised in Part V of the Constitution  

which deals with the Union and form a part of Chapter II, which deals with  

Parliament.  Article 105 is extracted below:  

“105.(1) Subject to the provisions of this Constitution   and to  

the rules and standing orders regulating the procedure of  

Parliament, there shall be freedom of speech in Parliament.   

(2) No member of Parliament shall be liable to any proceedings  

in any court in respect of anything said or any vote given by  

him in Parliament or any committee thereof, and no person  

shall be so liable in respect of the publication by or under the  

authority of either House of Parliament of any report, paper,  

votes or proceedings.  

(3) In other respects, the powers, privileges and immunities of  

each House of Parliament, and of the members and the  

committees of each House, shall be such as may from time to  

time be defined by Parliament by law, and, until so defined,  

[shall be those of that House and of its members and

PART C     

12    

committees immediately before the coming into force of section  

15 of the Constitution (Forty-fourth Amendment) Act, 1978.]  

(4) The provisions of clauses (1), (2) and (3) shall apply in  

relation to persons who by virtue of this Constitution have the  

right to speak in, and otherwise to take part in the proceedings  

of, a House of Parliament or any committee thereof as they  

apply in relation to members of Parliament.”  

14 The first major principle which emerges from Article 105 is that it expects,  

recognizes and protects the freedom of speech in Parliament. Stated in a  

sentence, the principle enunciates a vital norm for the existence of democracy.   

Parliament represents collectively, through the representative character of its  

members, the voice and aspirations of the people.  Free speech within the  

Parliament is crucial for democratic governance.  It is through the fearless  

expression of their views that Parliamentarians pursue their commitment to  

those who elect them.  The power of speech exacts democratic accountability  

from elected governments. The free flow of dialogue ensures that in framing  

legislation and overseeing government policies, Parliament reflects the diverse  

views of the electorate which an elected institution represents.  

15 The Constitution recognizes free speech as a fundamental right in Article  

19(1)(a). A separate articulation of that right in Article 105(1) shows how  

important the debates and expression of view in Parliament have been viewed  

by the draftspersons. Article 105(1) is not a simple reiteration or for that matter,  

a surplusage. It embodies the fundamental value that the free and fearless  

exposition of critique in Parliament is the essence of democracy. Elected

PART C     

13    

members of Parliament represent the voices of the citizens. In giving expression  

to the concerns of citizens, Parliamentary speech enhances democracy. Article  

105(1) emphasizes free speech as an institutional value, apart from it being a  

part of individual rights. Elected members of the legislature continue to wield  

that fundamental right in their individual capacity. Collectively, their expression  

of opinion has an institutional protection since the words which they speak are  

spoken within the portals of Parliament. This articulated major premise is  

however subject to the provisions of the Constitution and is conditioned by the  

procedure of Parliament embodied in its rules and standing orders. The  

recognition in clause (1) that there shall be freedom of speech in Parliament is  

effectuated by the immunity conferred on Members of Parliament against being  

liable in a court of law for anything said or for any vote given in Parliament or a  

committee. Similarly, a person who publishes a report, paper, votes or  

proceedings under the authority of Parliament is protected against liability in  

any court.  In other respects – that is to say, on matters other than those falling  

under clause (1) and (2), Parliament has been empowered to define the powers,  

privileges and immunities of each of its Houses and of its members and  

committees.  Until Parliament does so, those powers, privileges and immunities  

are such as existed immediately before the enforcement of the 44th amendment  

to the Constitution5.  Clause (4) of Article 105 widens the scope of the protection  

by making it applicable “in relation to persons” who have a right to speak in or  

to take part in the proceedings before the House or its committees. The  

                                                           5 The Constitution (44th amendment) Act, 1978 came into force from 20 June, 1979.

PART C     

14    

protection afforded to Members of Parliament is extended to all such persons  

as well. Committees of the Houses of Parliament are established by and under  

the authority of Parliament. They represent Parliament. They are comprised  

within Parliament and are as much, Parliament.  

16 Article 118 deals with the Rules of Procedure of Parliament:  

“118.(1) Each House of Parliament may make rules for  

regulating, subject to the provisions of this Constitution, its  

procedure and the conduct of its business.  

(2) Until rules are made under clause (1), the rules of  

procedure and standing orders in force immediately before the  

commencement of this Constitution with respect to the  

Legislature of the Dominion of India shall have effect in relation  

to Parliament subject to such modifications and adaptations as  

may be made therein by the Chairman of the Council of States  

or the Speaker of the House of the People, as the case may  

be.   

(3) The President, after consultation with the Chairman of the  

Council of States and the Speaker of the House of the People,  

may make rules as to the procedure with respect to joint sittings  

of, and communications between, the two Houses.  

(4) At a joint sitting of the two Houses the Speaker of the House  

of the People, or in his absence such person as may be  

determined by rules of procedure made under clause (3), shall  

preside.”  

The procedure and conduct of business of Parliament are governed by the rules  

made by each House. The rule making authority is subject only to the provisions  

of the Constitution. Until rules are framed, the procedure of Parliament was to  

be governed by the rules of procedure and Standing Orders which applied to  

the legislature of the Dominion of India immediately before the commencement  

of the Constitution (subject to adaptations and modifications).  Rules of

PART C     

15    

procedure for joint sittings of the two Houses of Parliament and in regard to  

communications between them are to be framed by the President in  

consultation with the Chairman of the Rajya Sabha and the Speaker of the Lok  

Sabha.    

17 Article 119 provides for regulation by law of the procedure in Parliament  

in relation to financial business.  Article 119 provides thus:  

“119.Parliament may, for the purpose of the timely completion  

of financial business, regulate by law the procedure of, and the  

conduct of business in, each House of Parliament in relation to  

any financial matter or to any  Bill for the appropriation of  

moneys out of the  Consolidated Fund of India, and, if and so  

far as any  provision of any law so made is inconsistent with  

any  rule made by a House of Parliament under clause (1) of   

article 118 or with any rule or standing order having  effect in  

relation to Parliament under clause (2) of that  article, such  

provision shall prevail.”  

Article 119 thus embodies a special provision which enables Parliament to  

regulate the procedure for and conduct of business in each House in relation to  

financial matters or for appropriation of monies from the Consolidated Fund.  

18 Article 122 contains a bar on courts inquiring into the validity of any  

proceedings of Parliament on the ground of an irregularity of procedure:  

“122.(1) The validity of any proceedings in Parliament shall not  

be called in question on the ground of any alleged irregularity  

of 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

PART C     

16    

jurisdiction of any court in respect of the exercise by him of  

those powers.”  

Article 122 protects the proceedings in Parliament being questioned on the  

ground of an irregularity or procedure.  In a similar vein, a Member of Parliament  

or an officer vested with authority under the Constitution to regulate the  

procedure or the conduct of business (or to maintain order) in Parliament is  

immune from being subject to the jurisdiction of any Court for the exercise of  

those powers. Those who perform the task – sometimes unenviable – of  

maintaining order in Parliament are also protected, to enable them to discharge  

their functions dispassionately.    

19 The provisions contained in Chapter II of Part V are mirrored, in the case  

of the State Legislatures, in Chapter III of Part VI. The corresponding provisions  

in regard to State Legislatures are contained in Articles 194, 208, 209 and 212.    

20 The fundamental principle which the Constitution embodies is in terms of  

its recognition of and protection to the freedom of speech in Parliament.

Freedom of speech has been entrenched by conferring an immunity against  

holding a Member of Parliament liable for what has been spoken in Parliament  

or for a vote which has been tendered.  The freedom to speak is extended to  

other persons who have a right to speak in or take part in the proceedings of  

Parliament.  Parliament is vested with the authority to regulate its procedures  

and to define its powers, privileges and immunities.  The same protection which

PART D     

17    

extends to Parliamentary proceedings is extended to proceedings in or before  

the Committees constituted by each House. Parliament has been vested with a

complete and exclusive authority to regulate its own procedure and the conduct  

of its business.  

21 While making the above provisions, the Constitution has carefully  

engrafted provisions to ensure institutional comity between Parliament and the  

judiciary. Under Article 121, the conduct of a Judge of the Supreme Court or of  

a High Court in the discharge of duties cannot be discussed in Parliament  

(except upon a motion for removal). Article 211 makes a similar provision in  

regard to the state legislatures.   

D Parliamentary Standing Committees  

22 Parliamentary Committees exist both in the Westminster form of  

government in the United Kingdom as well in the Houses of Parliament in India.  

In the UK, Select Committees have emerged as instruments through which  

Parliament scrutinizes the policies and actions of government and enforces  

accountability of government and its officers. Select committees are composed  

of specifically nominated members of Parliament and exercise the authority  

which the House delegates to them. The role of select committees has been set

PART D     

18    

forth in Erskine May’s Treatise on The Law, Privileges, Proceedings and  

Usage of Parliament6 :  

“Select committees are appointed by the House to perform a  

wide range of functions on the House’s behalf. Most notably  

they have become over recent years the principal mechanism  

by which the House discharges its responsibilities for the  

scrutiny of government policy and actions. Increasingly this  

scrutiny work has become the most widely recognized and  

public means by which Parliament holds government Ministers  

and their departments to account.”       

The scope of deliberations or inquiries before a Select Committee is defined in  

the order by which the committee is appointed. When a Bill is referred to a  

Select Committee, the Bill constitutes the order of reference7. Select  

committees are a microcosm of the House. During the course of their work,  

Select Committees rely upon documentary and oral evidence8:  

“Once received by the committee as evidence, papers  

prepared for a committee become its property and may not be  

published without the express authority of the committee.  

Some committees have agreed to a resolution at the beginning  

of an inquiry authorizing witnesses to publish their own  

evidence.”  

Evidence which has been collected during the course of an inquiry is published  

with the report of the committee9:    

“It is usual practice of committees to publish the evidence  

which they have taken during the course of an inquiry with the  

report to which the evidence is relevant. In the case of longer  

inquiries, the evidence may be separately published during the  

course of the inquiry. In such cases, however, that evidence  

may be published again with the report. Additionally,  

                                                           6 Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, (Lexis Nexis, 24th edn.,  

2011), 37.  7 Id, at pages 805-806.  8 Erskine May, at page 818.  9 Erskine May, at page 825.

PART D     

19    

committees may take evidence with no intention of producing  

a subsequent report and publish it without comment.”  

A Select committee decides when to publish any report which it has agreed10.  

Article 105 of the Indian Constitution recognizes committees of the Houses of  

Parliament. Rules of Procedure of the Lok Sabha and the Rajya Sabha framed  

under Article 118(1) of the Constitution inter alia provide for the organization  

and working of these committees11.       

23 The rules governing procedure and the conduct of business in the Rajya  

Sabha provide for the constitution of the committees of the House.  Chapter IX  

of the Rules contains provisions relating to legislation. Provisions have been  

made for Bills which originate in the Rajya Sabha and for those which originate  

in the Lok Sabha and are transmitted to the Rajya Sabha. Under Rule 72,  

members of a Select Committee for a Bill are appointed by the Rajya Sabha  

when a motion that the Bill be referred to a Select Committee is made. Rule 84  

empowers the Select Committee to require the attendance of witnesses or the  

production of papers or records.  The Select Committee can hear expert  

evidence and representatives of special interests affected by the measure.  

Documents submitted to the Committee cannot be withdrawn or altered without  

its knowledge and approval. The Select Committee, under Rule 85, is  

empowered to decide upon its procedure and the nature of questions which it  

                                                           10 Erskine May, at page 838  11 Rules of Procedure and Conduct of Business in Lok Sabha, (Lok Sabha Secretariat, 15th edn., April 2014).     Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), (published by the Secretary    General, 9th edn., August 2016).

PART D     

20    

may address to a witness called before it.  Rule 86 provides for the printing and  

publication of evidence and empowers the Committee to direct that the  

evidence or a summary be laid on the table. Evidence tendered before the  

Select Committee can only be published after it has been laid on the table.  The  

Select Committee prepares its report on the Bill referred to it, under Rule 90.   

Under Rule 91, the report of the Select Committee on a Bill, together with  

minutes of dissent, is presented to the Rajya Sabha by the Chairperson of the  

Committee.  Under Rule 92, the Secretary General must print every report of a  

Select Committee.  The report together with the Bill proposed by the Select  

Committee has to be published in the Gazette.  The rules contemplate the  

procedure to be followed in the Rajya Sabha for debating and discussing the  

report and for considering amendments, leading up to the eventual passage of  

the Bill.  In a manner similar to reference of Bills originating in the Rajya Sabha  

to Select Committees, Bills which are transmitted from the Lok Sabha to the  

Rajya Sabha may be referred to a Select Committee under Rule 125, if a motion  

for that purpose is carried.  

24 Chapter XXII of the Rules contains provisions in regard to Department  

related Parliamentary Standing Committees. Rule 268 stipulates that there shall  

be Parliamentary Standing Committees related to Ministries/Departments. The  

Third schedule elucidates the name of each Committee and the  

Ministries/Departments which fall within its purview.  Under Rule 269, each such  

Committee is to consist of not more than 31 members: 10 to be nominated by

PART D     

21    

the Chairperson from the Members of the Rajya Sabha and 21 to be nominated  

by the Speaker from the Members of the Lok Sabha. Rule 270 specifies the  

functions of the Standing Committees:   

“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 thereon:  

Provided that the Standing Committees shall not consider  

matters of day-to-day administration of the related  

Ministries/Departments.”  

Rule 274 envisages that the report of the Standing Committee “shall be based  

on broad consensus” though a member may record a dissent.  The report of the  

Committee is presented to the Houses of Parliament. Under Rule 275,  

provisions applicable to Select Committees on Bills apply mutatis mutandis to  

the Standing Committees. Rule 277 indicates that the report of a Standing  

Committee is to have persuasive value and is treated as advice to the House:  

“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.”  

PART D     

22    

Department related Parliamentary Standing Committees are Committees of the  

Houses of Parliament. The Committees can regulate their procedure for  

requiring the attendance of persons and for the production of documents.  The  

Committees can hear experts or special interests.  These   Committees ensure  

parliamentary oversight of the work of the ministries/departments of  

government.  As a part of that function, each Committee considers demands for  

grants, examines Bills which are referred to it, considers the annual reports of  

the ministry/department and submits reports on national long-term policy  

documents, when they have been referred for consideration. The reports of  

these Committees are published and presented to the Houses of Parliament.   

They have a persuasive value and are advice given by the Committee to  

Parliament.    

25 Besides the Department related Standing Committees, there is a General  

Purposes Committee (Chapter XXIII) whose function is to consider and advise  

on matters governing the affairs of the House, referred by the Chairperson.  

Chapter XXIV provides for the constitution of a Committee on Ethics to oversee

“the moral and ethical conduct” of members, prepare a code of conduct,  

examine cases of alleged breach and to tender advise to members on questions  

involving ethical standards.

PART E     

23    

E Parliamentary privilege  

 E.1     UK Decisions  

 26 In the UK, a body of law has evolved around the immunity which is  

afforded to conduct within or in relation to statements made to Parliament  

against civil or criminal liability in a court of law. The common law also affords  

protection against the validity of a report of a Select Committee being  

challenged in a court.   

27 Article 9 of the Bill of Rights, 1689 declares that:  

“..That the freedom of speech and debates or proceedings in  

Parliament, ought not to be impeached or questioned in any  

court or place out of Parliament…”    

Construed strictly, the expression “out of Parliament” will effectively squelch any  

discussion of the proceedings of Parliament, outside it. This would compromise  

to the need for debate and discussion on matters of governance in a  

democracy. Hence, there has been an effort to bring a sense of balance: a  

balance which will ensure free speech within Parliament but will allow a free  

expression of views among citizens. Both are essential to the health of  

democracy.       

PART E     

24    

Article 9 has provided the foundation for a line of judicial precedent in the  

English Courts. In 1884, the principle was formulated In Bradlaugh v  

Gossett12:  

“The House of Commons is not subject to the control of Her  

Majesty’s Courts in its administration of that part of the Statute  

law which has relation to its internal procedure only. What is  

said or done within its walls cannot be inquired into a court of  

law. A resolution of the House of Commons cannot change the  

law of the land. But a court of law has no right to inquire into  

the propriety of a resolution of the House restraining a member  

from doing within the walls of the House itself something which  

by the general law of the land he had a right to do.”   

In Dingle v Associated Newspapers Ltd13, the above formulation was held to  

constitute “a clear affirmation of the exclusive right of Parliament to regulate its  

own internal proceedings”. Applying that principle, the Queen’s Bench Division  

ruled that the report of a Select Committee of the House of Commons could not  

be impugned outside Parliament. This principle was applied in Church of  

Scientology of California v Johnson-Smith14, when an action for libel was  

brought against a Member of Parliament for a statement made during the  

course of a television interview. In order to refute the defendants’ plea of fair  

comment, the plaintiff sought to prove malice by leading evidence of what had  

taken place in Parliament. Rejecting such an attempt, the court adverted to the  

following statement of principle in Blackstone:  

“The whole of the law and custom of Parliament has its origin  

from this one maxim, “that whatever matter arises concerning  

either House of Parliament ought to be examined, discussed,  

and adjudged in that House to which it relates, and not  

elsewhere.”  

                                                           12 (1884) 12 Q.B.D. 271  13 (1960) 2 Q.B. 405  14 (1972) 1 Q.B. 522

PART E     

25    

Reiterating that principle, the court held:  

“…what is said or done in the House in the course of any  

proceedings there cannot be examined outside Parliament for  

the purpose of supporting a cause of action even though the  

cause of action itself arises out of something done outside the  

House.”  

The decision involved a libel action brought against a Member of Parliament for  

a statement made outside. The court rejected an attempt to rely upon what was  

stated in Parliament to establish a case of malice against the defendant.  

   28 In Pepper (Inspector of Taxes) v Hart15, Lord Browne-Wilkinson held  

for the House of Lords that there was a valid reason to relax the conventional  

rule of exclusion under which reference to Parliamentary material, as an aid to  

statutory construction, was not permissible. The learned Law Lord held:   

“In my judgment, subject to the questions of the privileges of  

the House of Commons, reference to Parliamentary material  

should be permitted as an aid to the construction of legislation  

which is ambiguous or obscure or the literal meaning of which  

leads to an absurdity. Even in such cases references in court  

to Parliamentary material should only be permitted where such  

material clearly discloses the mischief aimed at or the  

legislative intention lying behind the ambiguous or obscure  

words.”     

 Holding that such a relaxation would not involve the court criticizing what has  

been said in Parliament since the court was only giving effect to the words used  

by the Minister, the court held that the exclusionary rule should be relaxed to  

permit reference to Parliamentary materials where:  

“(a) legislation is ambiguous or obscure, or leads to an  

absurdity; (b) the material relied upon consists of one or more  

                                                           15 (1992) 3 W.L.R. 1032

PART E     

26    

statements by a Minister or other promoter of the Bill together  

if necessary with such other Parliamentary material as is  

necessary to understand such statements and their effect; (c)  

the statements relied upon are clear.”   

29 The decision of the Privy Council in Richard William Prebble v  

Television New Zealand (“Prebble”)16 arose from a case where, in a  

television programme transmitted by the defendant, allegations were levelled  

against the Government of New Zealand, involving the sale of state owned  

assets to the private sector while the plaintiff was the Minister of the department.  

In his justification, the defendant alleged that the plaintiff had made statements  

in the House calculated to mislead. Lord Browne-Wilkinson held that the  

defendant was precluded from questioning a statement made by the plaintiff  

before the House of Parliament. The principle was formulated thus:  

 “In addition to article 9 itself, there is a long line of authority  

which supports a wider principle, of which article 9 is merely  

one manifestation, viz. that the courts and Parliament are both  

astute to recognize their respective constitutional roles. So far  

as the courts are concerned they will not allow any challenge  

to be made to what is said or done within the walls of  

Parliament in performance of its legislative functions and  

protection of its established privileges: Burdett v. Abbot (1811)  

14 East 1; Stockdale v. Hansard (1839) 9 Ad.  & EI. 1;  

Bradlaugh v. Gossett (1884) 12 Q.B.D. 271; Pickin v. British  

Railways Board (1974) A.C. 765; Pepper v. Hart (1993) A.C.  

593. As Blackstone said in his Commentaries on the Laws of  

England, 17th ed. (1830), vol. 1, p.163:  

‘the whole of the law and custom of Parliament  

has its origin from this one maxim, ‘that  

whatever matter arises concerning either  

House of Parliament, ought to be examined,  

discussed, and adjudged in that House to  

which it relates, and not elsewhere.”   

                                                           16 (1994) 3 W.L.R. 970

PART E     

27    

The Privy Council held that cross-examination based on the Hansard was  

impermissible.   

 In the course of its decision in Prebble, the Privy Council adverted to an  

Australian judgment of the New South Wales Supreme Court in Reg. v  

Murphy (“Murphy”)17 which had allowed a witness to be cross examined on  

the basis of evidence given to a Select Committee on the ground that Article 9  

did not prohibit cross-examination to show that the statement of the witness  

before the committee was false. In order to overcome the situation created by  

the decision, the Australian legislature enacted the Parliamentary Privileges,  

Act 1987. Section 16(3) introduced the following provisions:  

 “(3) In proceedings in any court or tribunal, it is not lawful for  

evidence to be tendered or received, questions asked or  

statements, submissions or comments made, concerning  

proceedings in Parliament, by way of, or for the purpose of: (a)  

questioning or relying on the truth, motive, intention or good  

faith of anything forming part of those proceedings in  

Parliament; (b) otherwise questioning or establishing the  

credibility, motive, intention or good faith of any person; or (c)  

drawing, or inviting the drawing of, inferences or conclusions  

wholly or partly from anything forming part of those  

proceedings in Parliament.”  

   In Prebble, the Privy Council held that Section 16(3) contains “what, in the  

opinion of their lordships, is the true principle to be applied”. The Privy Council  

held that the Australian view in Murphy was not correct, so far as the rest of the  

Commonwealth is concerned, because it was in conflict with a long line of  

                                                           17(1986) 64 A.L.R. 498

PART E     

28    

authority that courts will not allow any challenge to what is said or done in  

Parliament.  

   The Defamation Act, 1996 (UK) contained a provision in Section 13 under which  

an individual litigant in a defamation case could waive Parliamentary privilege.  

The report of the Joint Committee observed that the provision “undermined the  

basis of privilege: freedom of speech was the privilege of the House as a whole  

and not of the individual Member in his or her own right, although an individual  

Member could assert and rely on it.” The waiver provision was deleted on the  

ground that the privilege belongs to the House and not to an individual member.  

The impact of the provisions of Section 13 of the Defamation Act, 1996 was  

dealt with in a 2011 decision of the House of Lords in Hamilton v AI Fayed  

(“Hamilton”)18. The defendant had alleged that as a Member of Parliament, the  

plaintiff had accepted cash from him for asking questions on his behalf in the  

House of Commons. The plaintiff commenced an action for defamation against  

the defendant, waiving his parliamentary privileges pursuant to Section 13 of  

the Defamation Act, 1996. Lord Browne-Wilkinson dwelt on parliamentary  

privileges, which prohibit the court from questioning whether a witness before  

Parliament had misled it. The House of Lords held that any attempt to cross-

examine the defendant to the effect that he had lied to a Parliamentary  

committee when he had stated that he had paid money for questions would  

have infringed parliamentary privileges. However, under Section 13, the plaintiff  

                                                           18 (2001) 1 A.C. 395

PART E     

29    

could waive his own protection from Parliamentary privilege. The consequence  

was thus:  

“The privileges of the House are just that. They all belong to  

the House and not to the individual. They exist to enable the  

House to perform its functions. Thus section 13(1) accurately  

refers, not to the privileges of the individual MP, but to “the  

protection of any enactment or rule of law” which prevents the  

questioning of procedures in Parliament. The individual MP  

enjoys the protection of parliamentary privileges. If he waives  

such protection, then under section 13(2) any questioning of  

parliamentary proceedings (even by challenging  

“findings…made about his conduct”) is not to be treated as a  

breach of the privileges of Parliament.”        

The effect of Section 13 was that if a Member of Parliament waived the  

protection, an assail of proceedings before Parliament would not be regarded  

as a breach of privilege.   

   30 The decision in Hamilton is significant for explaining precisely the  

relationship between parliamentary privilege and proceedings in a Court which  

seek to challenge the truth or propriety of anything done in parliamentary  

proceedings.  As the Court holds:  

“The normal impact of parliamentary privilege is to prevent the  

court from entertaining any evidence, cross-examination or  

submissions which challenge the veracity or propriety of  

anything done in the course of parliamentary proceedings.   

Thus, it is not permissible to challenge by cross-examination in  

a later action the veracity of evidence given to a parliamentary  

committee.”  

But for the provisions of Section 13, evidence by Hamilton that he had not  

received money for questions would come into conflict with the evidence  

tendered by AI Fayed which was accepted by the Parliamentary Committees.

PART E     

30    

Hence it would have been impermissible to cross-examine Al Fayed to the effect  

that he had falsely stated before the Parliamentary Committees that he had paid  

money for questions. Such a consequence was obviated by the waiver  

provisions of Section 13.   

31 In Toussaint v Attorney General of Saint Vincent and the Grenadines  

(“Toussaint”)19, the Privy Council dealt with a case where a claim was brought  

against the government by an individual claiming that the acquisition of his land  

was unlawful.  In support, he referred to a speech of the Prime Minister in  

Parliament and a transcript taken from the video-tape of a televised debate. The  

submission was that the true reason for the acquisition of the land, as evident  

from the speech of the Prime Minister, was political.  Adverting to Prebble, Lord  

Mance, speaking for the Privy Council, noted that there were three principles  

involved: the need to ensure the free exercise of powers by the legislature on  

behalf of the electors; the need to protect the interest of justice; and the interest  

of justice in ensuring that all relevant evidence is available to the courts.  The  

Privy Council held that it was permissible to rely upon the speech of the Prime  

Minister though the attempt was to demonstrate an improper exercise of power  

for extraneous purposes. As Lord Mance observed:  

“In such cases, the minister’s statement is relied upon to  

explain the conduct occurring outside Parliament, and the  

policy and motivation leading to it.  This is unobjectionable  

although the aim and effect is to show that such conduct  

involved the improper exercise of a power “for an alien purpose  

or in a wholly unreasonable manner”: Pepper v Hart, per Lord  

                                                           19 (2007) 1 W.L.R. 2825

PART E     

31    

Browne-Wilkinson at p 639 A.  The Joint Committee expressed  

the view that Parliament should welcome this development, on  

the basis that “Both parliamentary scrutiny and judicial review  

have important roles, separate and distinct, in a modern  

democratic society” (para 50) and on the basis that “The  

contrary view would have bizarre consequences”, hampering  

challenges to the “legality of executive decisions… by ring-

fencing what ministers said in Parliament, and making  

“ministerial decisions announced in Parliament…less readily  

open to examination than other ministerial decisions”: para 51.  

The Joint Committee observed, pertinently, that  

“That would be an ironic consequence of  

article 9. Intended to protect the integrity of the  

legislature from the executive and the courts,  

article 9 would become a source of protection  

of the executive from the courts.””  

The Prime Minister’s statement in the House was “relied on for what it says,  

rather than questioned or challenged”.  This was permissible.   

32 Toussaint is an important stage in the development of the law. A  

statement made in Parliament by a Minister could be relied upon, not just to  

explain the history of a law. Where there is a challenge to the exercise of  

governmental authority on the ground that it is actuated by extraneous reasons,  

a statement by a Minister in Parliament could be used in court in regard to  

conduct outside Parliament.  The challenge is not to a statement made in  

Parliament but to governmental action outside. The statement would be relevant  

to question an abuse of power by government.   

PART E     

32    

33 In Regina (Bradley and Others) v Secretary of State for Work and  

Pensions (Attorney General intervening)20, the Court of Appeal visited the  

statement in Prebble that Section 16(3) of the Parliamentary Privileges Act,  

1987 in Australia declared the true effect of Article 9 of the Bill of Rights and  

that Section 16(3) contained “the true principle to be applied” in the case.   

Holding that the dictum in Prebble appears to be too wide, it was held:  

“…But paragraph (c), if read literally, is extremely wide. It would  

seem to rule out reliance on or a challenge to a ministerial  

statement itself on judicial review of the decision embodied in  

that statement (which was permitted in R v Secretary of State  

for the Home Department, Ex p Brind [1991] 1 AC 696, and to  

which no objection has been raised in the present case), or to  

resolve an ambiguity in legislation (Pepper v Hart [1993] AC  

593), or to assist in establishing the policy objectives of an  

enactment (Wilson v First County Trust Ltd (No 2) [2004] 1 AC  

816). It would also prohibit reliance on report of the Joint  

Committee on Human Rights, which, as Mr Lewis’s  

submissions rightly state, have been cited in a number of  

appellate cases in this jurisdiction: a very recent example is R  

v F [2007] QB 960 para 11. As Lord Nicholls of Birkenhead  

observed in Wilson’s case [2004] 1 AC 816, para 60:  

“there are occasions when courts may properly  

have regard to ministerial and other statements  

made in Parliament without in any way  

‘questioning’ what has been said in Parliament,  

without giving rise to difficulties inherent in treating  

such statements as indicative of the will of  

Parliament, and without in any other way  

encroaching upon parliamentary privilege by  

interfering in matters properly for consideration  

and regulation by Parliament alone.”  

I therefore do not treat the text of paragraph(c) of the Australian  

statute as being a rule of English law.”  

The report of a Select Committee, it was observed, is a written document  

published after a draft report has been placed before and approved by the  

                                                           20(2007) EWHC 242 (Admin)

PART E     

33    

Committee.  Hence, it was unlikely that the use of such a report in the  

submissions of a party in civil litigation would have inhibited the Committee from  

expressing its view. The freedom of speech in Parliament principle would not  

be affected, since there would be no inhibition of that freedom.  

34 The decision of the Administrative Court in the UK in Office of  

Government Commerce v Information Commissioner (Attorney General  

intervening)21 involved a case where a department of government had carried  

out reviews into an identity card programme. The case involved a claim for the  

disclosure of information. The Court observed that the law of parliamentary  

privilege is based on two principles: the need for free speech in Parliament and  

separation of powers between the legislature and the judiciary:  

“...the law of parliamentary privilege is essentially based on two  

principles. The first is the need to avoid any risk of interference  

with free speech in Parliament.  The second is the principle of  

the separation of powers, which in our constitution is restricted  

to the judicial function of government and requires the  

executive and the legislature to abstain from interference with  

the judicial function, and conversely requires the judiciary not  

to interfere with or to criticise the proceedings of the legislature.  

These basic principles lead to the requirement of mutual  

respect by the courts for the proceedings and decisions of the  

legislature and by the legislature (and the executive) for the  

proceedings and decisions of the courts.  

Conflicts between Parliament and the courts are to be avoided.   

The above principles lead to the conclusion that the courts  

cannot consider allegations of impropriety or inadequacy or  

lack of accuracy in the proceedings of Parliament. Such  

allegations are for Parliament to address, if it thinks fit, and if  

an allegation is well founded any sanction is for Parliament to  

determine. The proceedings of Parliament include  

                                                           21(2009) 3 W.L.R. 627

PART E     

34    

parliamentary questions and answers.  These are not matters  

for the courts to consider.”  

Yet, the Court also noticed the limitation of the above principles, when  

proceedings in Parliament are relied upon simply as relevant historical facts or  

to determine whether the legislation is incompatible with the European  

Convention for the Protection of Human Rights which was embodied in the  

Human Rights Act 1998 (“HRA”) in the UK.  In that context the Court observed:  

“However, it is also important to recognise the limitations of  

these principles. There is no reason why the courts should not  

receive evidence of the proceedings of Parliament when they  

are simply relevant historical facts or events; no “questioning”  

arises in such a case… Similarly, it is of the essence of the  

judicial function that the courts should determine issues of law  

arising from legislation and delegated legislation. Thus, there  

can be no suggestion of a breach of parliamentary privilege if  

the courts decide that legislation is incompatible with the  

European Convention for the Protection of Human Rights and  

Fundamental Freedoms: by enacting the Human Rights Act  

1998…”  

The Court held that the conclusions of the report of a Committee that had led to  

legislation could well be relied upon since the purpose of the reference is either  

historical or made with a view to ascertaining the mischief at which the  

legislation was aimed.  If the evidence given to a Committee is uncontentious –  

the parties being in agreement that it is true and accurate - there could be no  

objection to it being taken into account.  What the Tribunal could not do was to  

refer to contentious evidence given to a Parliamentary Committee or the finding  

of the Committee on an issue which the Tribunal had to determine.   

PART E     

35    

35 The decision indicates a calibrated approach to Parliamentary privilege  

consistent with the enactment of the HRA. The doctrine of incompatibility  

envisages a role for courts in the UK to assess the consistency of the provisions  

of law with reference to the standards of the European Convention.  

Parliamentary supremacy does not allow the court to strike down legislation.   

Yet the emergence of standards under the HRA has allowed for a distinct  

adjudicatory role: to determine the compatibility of domestic law with reference  

to European Convention standards, adopted by the HRA.  To hold that this has  

not altered the role of courts vis-à-vis Parliamentary legislation would be to miss  

a significant constitutional development.   

Wheeler v The Office of the Prime Minister22  was a case where there was a  

challenge to a decision brought by the government to give notice of the intention  

of the UK to participate in the Council Framework Decision on the European  

arrest warrants.  It was claimed that the government was precluded from issuing  

a notification of its intention without holding a referendum.  Holding that the plea  

would breach Parliamentary privilege the Court held:  

“…In substance, however, the claim is that, unless the House  

of Commons organises its business in a particular way, and  

arranges for a vote in a particular form, the courts must  

intervene and either grant a declaration or issue an order  

prohibiting the government from taking certain steps unless  

and until there is such a vote. In my judgment, that would  

involve the courts impermissibly straying from the legal into the  

political realm.”   

                                                           22(2014) EWHC 3815 (Admin)

PART E     

36    

The plea, the Court ruled, would amount to the Court questioning things done  

in Parliament and instead of facilitating the role of Parliament, the Court would  

be usurping it.    

In Wilson v First County Trust Ltd23  the House of Lords observed that the  

Human Rights Act 1998 had obligated the Court to exercise a new role in  

respect of primary legislation.  Courts were required to evaluate the effect of  

domestic legislation upon rights conferred by the European Convention and  

where necessary; to make a declaration of incompatibility. While doing so, the  

Court would primarily construe the legislation in question. Yet, the practical  

effect of a statutory provision may require the court to look outside the statute.   

The court would be justified in looking at additional background information to  

understand the practical impact of a statutory measure on a Convention right  

and decide upon the proportionality of a statutory provision. In that context, the  

Court held:  

“This additional background material may be found in  

published documents, such as a government white paper. If  

relevant information is provided by a minister or, indeed, any  

other member of either House in the course of a debate on a  

Bill, the courts must also be able to take this into account.  The  

courts, similarly, must be able to have regard to information  

contained in explanatory notes prepared by the relevant  

government department and published with a Bill. The courts  

would be failing in the due discharge of the new role assigned  

to them by Parliament if they were to exclude from  

consideration relevant background information whose only  

source was a ministerial statement in Parliament or an  

explanatory note prepared by his department while the Bill was  

proceeding through Parliament.  By having regard to such  

material, the court would not be “questioning” proceedings in  

                                                           23(2004) 1 AC  816

PART E     

37    

Parliament or intruding improperly into the legislative process  

or ascribing to Parliament the views expressed by a minister.  

The court would merely be placing itself in a better position to  

understand the legislation.  

To that limited extent there may be occasion for the courts,  

when conducting the statutory “compatibility” exercise, to have  

regard to matters stated in Parliament. It is a consequence  

flowing from the Human Rights Act.  The constitutionally  

unexceptionable nature of this consequence receives some  

confirmation from the view expressed in the unanimous report  

of the parliamentary Joint Committee on Parliamentary  

Privilege (1999) (HL Paper 43-I, HC 214-I), p 28, para 86, that  

it is difficult to see how there could be any objection to the court  

taking account of something said in Parliament when there is  

no suggestion the statement was inspired by improper motives  

or was untrue or misleading and there is no question of legal  

liability.”  

Recourse to such background information would enable the court to better  

understand the law and would not amount to a breach of parliamentary  

privilege.    

36 The decision of the Privy Council in Owen Robert Jennings v Roger  

Edward Wyndham Buchanan24 arose from the Court of Appeal in New  

Zealand. The judgment recognises that while the protection conferred by Article  

9 of the Bill of Rights should not be whittled away, yet as the Joint Committee  

on Parliamentary privileges (Chaired by Lord Nicholls of Birkenhead) observed,  

freedom to discuss parliamentary proceedings is necessary in a democracy:  

“Freedom for the public and the media to discuss parliamentary  

proceedings outside Parliament is as essential to a healthy  

democracy as the freedom of members to discuss what they  

choose within Parliament.”  

                                                           24(2004) UKPC 36

PART E     

38    

Media reporting of Parliamentary proceedings, the Court held, has been an  

important instrument of public debate. Hence the freedom of the Members of  

Parliament to discuss freely within its portals must be weighed with the freedom  

of the public to discuss and debate matters of concern to them:  

“As it is, parliamentary proceedings are televised and  

recorded. They are transcribed in Hansard. They are reported  

in the press, sometimes less fully than parliamentarians would  

wish. They form a staple of current affairs and news  

programmes on the radio and television.  They inform and  

stimulate public debate.  All this is highly desirable, since the  

legislature is representative of the whole nation. Thus, as the  

Joint Committee observed in its executive summary (page 1):  

“This legal immunity is comprehensive and  

absolute. Article 9 should therefore be confined to  

activities justifying such a high degree of  

protection, and its boundaries should be clear.””  

These observations reflect a concern to define the boundaries of the immunities  

under Article 9 in clear terms. While recognizing the absolute nature of the  

immunity, its boundaries must “be confined to activities justifying such a high  

degree of protection”. The right of Members of Parliament to speak their minds  

in Parliament without incurring a liability is absolute.  However, that right is not  

infringed if a member, having spoken and in so doing defamed another person,  

thereafter chooses to repeat his statement outside Parliament. In such  

circumstances, the privilege may be qualified.  While it is necessary that the  

legislature and the courts do not intrude into the spheres reserved to the other,  

a reference to Parliamentary records to prove that certain words were in fact  

uttered is not prohibited.   

“In a case such as the present, however, reference is made to  

the parliamentary record only to prove the historical fact that

PART E     

39    

certain words were uttered. The claim is founded on the later  

extra-parliamentary statement. The propriety of the member’s  

behaviour as a parliamentarian will not be in issue.  Nor will his  

state of mind, motive or intention when saying what he did in  

Parliament.”  

37 The evolution of the law in the UK indicates the manner in which the  

protection under Article 9 of the Bill of Rights has been transformed. There are  

essentially three principles which underlie the debate. The first is the importance  

of the freedom of speech in Parliament. The absolute protection which is  

afforded to what is done or spoken by a Member of Parliament in Parliament is  

an emanation of the need to protect freedom of speech in Parliament. The  

second principle which is at work is the separation of powers between  

Parliament and the courts. This principle recognizes that liability for a falsehood  

spoken in Parliament lies within the exclusive control of Parliament. A Member  

of Parliament cannot be held to account in a court of law for anything which is  

said or spoken in Parliament. A speech in Parliament would not attract either a  

civil or criminal liability enforceable in a court of law. The third principle  

emphasises that debates in Parliament have a public element. Public debate is  

the essence of and a barometer to the health of democracy. Though the  

privilege which attaches to a speech in Parliament is absolute, the immunity  

extends to those activities within Parliament, which justify a high degree of  

protection. As Parliamentary proceedings have come to be widely reported,  

published and televised, the common law has come to recognize that a mere  

reference to or production of a record of what has been stated in Parliament  

does not infringe Article 9 of the Bill of Rights. In other words, a reference to

PART E     

40    

Parliamentary record to prove a historical fact that certain words were spoken  

is not prohibited. What is impermissible is to question the truthfulness or veracity  

of what was stated before Parliament in any forum including a court, outside  

Parliament. Nor can a Member of Parliament be cross-examined in a  

proceeding before the court with reference to what was stated in Parliament.  

The validity of an Act of Parliament or of the proceedings of a Parliamentary  

Committee cannot be questioned in a court in the UK. The enactment of the  

Human Rights Act has led to a recognition that in testing whether a statutory  

provision is incompatible with a Convention right, it may become necessary for  

the court to adjudge the practical effects of a law. To do so, the court may  

legitimately have reference to background material which elucidates the  

rationale for the law, the social purpose which it has sought to achieve and the  

proportionality of its imposition. In order to understand the facets of the law  

which bear upon rights protected under the European Convention, the court  

may justifiably seek recourse to statements of ministers, policy documents and  

white papers to find meaning in the words of the statute. The law in the UK has  

hence developed to recognize that free speech in Parliament and separation of  

powers must be placed in a scale of interpretation that is cognizant of the need  

to protect the democratic rights of citizens.   

 E.2     India  

38 The law in India has witnessed a marked degree of evolution. Indian  

jurisprudence on the subject has recognized the importance of the freedom of

PART E     

41    

speech in Parliament, the principle of separation of powers and the concomitant  

protection afforded to members from being held liable for what is spoken in  

Parliament. Principles grounded in the common law in the UK have not  

remained just in the realm of common law. The Constitution, in recognizing  

many of those principles imparts sanctity to them in a manner which only the  

text of a fundamental written charter for governance can provide.  Separation  

of powers is part of the basic structure. Our precedent on the subject notices  

the qualitative difference between Parliamentary democracy in the UK and in  

India. The fundamental difference arises from the supremacy of the Indian  

Constitution which subjects all constitutional authorities to the mandate of a  

written Constitution.   

39 The locus classicus on the subject of parliamentary privileges is the  

seven-judge Bench decision in Re: Powers, Privileges and Immunities of  

State Legislatures25. It was argued before this Court that the privilege of the  

House to construe Article 194(3) and to determine the width of the privileges,  

powers and immunities enables the House to determine questions relating to  

the existence and extent of its powers and privileges, unfettered by the views  

of the Supreme Court. Chief Justice Gajendragadkar, held that it was necessary  

to determine whether even in the matter of privileges, the Constitution confers  

on the House a sole and exclusive jurisdiction. The decision recognizes that  

while in the UK, Parliament is sovereign, the Indian Constitution creates a  

                                                           25Special Reference No. 1 of 1964: (1965) 1 SCR 413

PART E     

42    

federal structure and the supremacy of the Constitution is fundamental to  

preserving the delicate balance of power between constituent units:   

 “38. …it is necessary to bear in mind one fundamental feature  

of a federal constitution. In England, Parliament is sovereign;  

and in the words of Dicey, the three distinguishing features of  

the principle of Parliamentary Sovereignty are that Parliament  

has the right to make or unmake any law whatever; that no  

person or body is recognized by the law of England as having  

a right to override or set aside the legislation of Parliament, and  

that the right or power of Parliament extends to every part of  

the Queen’s dominions. On the other hand, the essential  

characteristic of federalism is “the distribution of limited  

executive, legislative and judicial authority among bodies  

which are co-ordinate with and independent of each other”.  

The supremacy of the Constitution is fundamental to the  

existence of a federal State in order to prevent either the  

legislatures of the federal unit or those of the member States  

from destroying or impairing that delicate balance of power  

which satisfied the particular requirements of States which are  

desirous of union, but not prepared to merge their individuality  

in a unity. This supremacy of the constitution is protected by  

the authority of an independent judicial body to act as the  

interpreter of a scheme of distribution of powers. Nor is any  

change possible in the constitution by the ordinary process of  

federal or State legislation. Thus the dominant characteristic of  

the British Constitution cannot be claimed by a federal  

constitution like ours”.  

While the legislatures in our country have plenary powers, they function within  

the limits of a written Constitution. As a result, the sovereignty which Parliament  

can claim in the UK cannot be claimed by any legislature in India “in the literal  

absolute sense”.         

       40 The immunity conferred on Members of Parliament from liability to “any  

proceedings in any court in respect of anything said or any vote given by him in  

Parliament” (Article 105(2)) was deliberated upon in a judgment of the

PART E     

43    

Constitution Bench in P V Narasimha Rao v State (CBI/SPE)26. Justice G N  

Ray agreed with the view of Justice S P Bharucha on the scope of the immunity  

under clauses (2) and (3) of Article 105. The judgment of Justice Bharucha (for  

himself and Justice S Rajendra Babu) thus represents the view of the majority.  

The minority view was of Justices S C Agrawal and Dr A S Anand. In construing  

the scope of the immunity conferred by Article 105(2), Justice Bharucha  

adverted to judgments delivered by courts in the United Kingdom (including  

those of the Privy Council noted earlier27). Interpreting Article 105(2), Justice  

Bharucha observed thus:   

“133. Broadly interpreted, as we think it should be, Article  

105(2) protects a Member of Parliament against proceedings  

in court that relate to, or concern, or have a connection or  

nexus with anything said, or a vote given, by him in  

Parliament.”         

In that case, the charge in a criminal prosecution for offences under Section  

120B of the Penal Code and the Prevention of Corruption Act, 1988 was that  

there was a criminal conspiracy between alleged bribe givers and bribe takers  

(who were members of the legislature) to defeat a motion of no confidence by  

obtaining illegal gratification in pursuance of which bribes were given and  

accepted. The charge did not refer to the votes that the alleged bribe takers had  

actually cast upon the no confidence motion. Nevertheless, the majority held  

that the expression “in respect of” in Article 105(2) must perceive a ‘broad  

meaning’. The alleged conspiracy and agreement had nexus in respect of those  

                                                           26 (1998) 4 SCC 626  27 Bradlaugh v Gosset: (1884) 12 QBD 271: 53 LJQB 290; Prebble v Television New Zealand Ltd: (1994) 3 AII ER  

407, PC; R v Currie: (1992)

PART E     

44    

votes, and the proposed inquiry in the criminal proceedings was in regard to its  

motivation.  The submission of the Attorney General for India that the protection  

under Article 105(2) is limited to court proceedings and to a speech that is given  

or a vote that is cast was not accepted by the Constitution Bench for the  

following reasons:  

 “136. It is difficult to agree with the learned Attorney General  

that though the words “in respect of” must receive a broad  

meaning, the protection under Article 105(2) is limited to court  

proceedings that impugn the speech that is given or the vote  

that is cast or arises thereout or that the object of the protection  

would be fully satisfied thereby. The object of the protection is  

to enable Members to speak their mind in Parliament and vote  

in the same way, freed of the fear of being made answerable  

on that account in a court of law. It is not enough that Members  

should be protected against civil action and criminal  

proceedings, the cause of action of which is their speech or  

their vote. To enable Members to participate fearlessly in  

parliamentary debates, Members need the wider protection of  

immunity against all civil and criminal proceedings that bear a  

nexus to their speech or vote. It is for that reason that a  

Member is not “liable to any proceedings in any court in respect  

of anything said or any vote given by him”. Article 105(2) does  

not say, which it would have if the learned Attorney General  

were right, that a Member is not liable for what he has said or  

how he has voted. While imputing no such motive to the  

present prosecution, it is not difficult to envisage a Member  

who has made a speech or cast a vote that is not to the liking  

of the powers that be being troubled by a prosecution alleging  

that he had been party to an agreement and conspiracy to  

achieve a certain result in Parliament and had been paid a  

bribe.”28   

   The view of the minority was that the offence of bribery is made out against a  

bribe taker either upon taking or agreeing to take money for a promise to act in  

a certain manner. Following this logic, Justice SC Agrawal held that the criminal  

                                                           28Id, at pages 729-730

PART E     

45    

liability of a Member of Parliament who accepts a bribe for speaking or giving a  

vote in Parliament arises independent of the making of the speech or the giving  

of the vote and hence is not a liability “in respect of anything said or any vote  

given” in Parliament. The correctness of the view in the judgment of the majority  

does not fall for consideration in the present case. Should it become necessary  

in an appropriate case in future, a larger bench may have to consider the issue.   

   41 The judgment of the Constitution Bench in Raja Ram Pal v Hon’ble  

Speaker, Lok Sabha29, has a significant bearing on the issues which arise in  

the present reference. Chief Justice YK Sabharwal, delivering the leading  

opinion on behalf of three judges dealt with the ambit of Article 105 in relation  

to the expulsion of a member and the extent to which such a decision of the  

Houses of Parliament is amenable to judicial review. The judgment notices that  

“parliamentary democracy in India is qualitatively distinct” from the UK. In  

defining the nature and extent of judicial review in such cases, Chief Justice  

Sabharwal observed that it is the jurisdiction of the court to examine whether a  

particular privilege claimed by the legislature is actually available to it:   

 “62. In view of the above clear enunciation of law by  

Constitution Benches of this Court in case after case, there  

ought not be any doubt left that whenever Parliament, or for  

that matter any State Legislature, claims any power or privilege  

in terms of the provisions contained in Article 105(3), or Article  

194(3), as the case may be, it is the Court which has the  

authority and the jurisdiction to examine, on grievance being  

brought before it, to find out if the particular power or privilege  

that has been claimed or asserted by the legislature is one that  

was contemplated by the said constitutional provisions or, to  

                                                           29 (2007) 3 SCC 184

PART E     

46    

put it simply, if it was such a power or privilege as can be said  

to have been vested in the House of Commons of the  

Parliament of the United Kingdom as on the date of  

commencement of the Constitution of India so as to become  

available to the Indian Legislatures.”30  

   While Parliament has the power to expel a member for a contempt committed,  

the doctrine of “exclusive cognizance” adopted in the UK has no application in  

India which is governed by a written Constitution. Though Parliament is  

possessed of a plentitude of powers, it is subject to terms of legislative  

competence and to the restrictions imposed by fundamental rights. Article 21 is  

attracted when the liberty of a Member of Parliament is threatened by  

imprisonment in execution of a parliamentary privilege. Fundamental rights can  

be invoked both by a member and by a non-member when faced by the exercise  

of parliamentary privilege. Drawing the distinction between the UK and India,  

Chief Justice Sabharwal observed:   

“363. That the English cases laying down the principle of  

exclusive cognizance of Parliament,  

including Bradlaugh [(1884) 12 QBD 271: 53 LJQB 290: 50 LT  

620], arise out of a jurisdiction controlled by the constitutional  

principle of sovereignty of Parliament cannot be lost sight of. In  

contrast, the system of governance in India is founded on the  

norm of supremacy of the Constitution which is fundamental to  

the existence of the Federal State.”31  

 Consequently, proceedings which are tainted as a result of a substantive  

illegality or unconstitutionality (as opposed to a mere irregularity) would not be  

protected from judicial review. The doctrine of exclusive cognizance was  

evolved in England as incidental to a system of governance based on  

                                                           30 Id, at page 259  31 Id, at page 348

PART E     

47    

parliamentary sovereignty. This has no application to India, where none of the  

organs created by the Constitution is sovereign, and each is subject to the  

checks and controls provided by the Constitution.  

The decision in Raja Ram Pal holds that Article 122(1) embodies the twin test  

of legality and constitutionality. This Court has categorically rejected the position  

that the exercise of powers by the legislature is not amenable to judicial review:  

 “389. …there is no scope for a general rule that the exercise of  

powers by the legislature is not amenable to judicial review.  

This is neither the letter nor the spirit of our Constitution. We  

find no reason not to accept that the scope for judicial review  

in matters concerning parliamentary proceedings is limited and  

restricted. In fact, this has been done by express prescription  

in the constitutional provisions, including the one contained in  

Article 122(1). But our scrutiny cannot stop, as earlier held,  

merely on the privilege being found, especially when breach of  

other constitutional provisions has been alleged.”32    

   The Court will not exercise its power of judicial review where there is merely an  

irregularity of procedure, in view of the provisions of Article 122(1). But judicial  

review is not “inhibited in any manner” where there is a gross illegality or a  

violation of constitutional provisions. While summarizing the conclusions of the  

judgment, Chief Justice Sabharwal emphasized the need for constitutional  

comity, since Parliament being a coordinate constitutional institution. The  

expediency and necessity for the exercise of the power of privilege are for the  

legislature to determine. Yet, judicial review is not excluded for the purpose of  

determining whether the legislature has trespassed on the fundamental rights  

                                                           32 Id, at page 360

PART E     

48    

of its citizens. Among the conclusions in the judgment, of relevance to the  

present case, are the following:  

“431. …(k) There is no basis to the claim of bar of exclusive  

cognizance or absolute immunity to the parliamentary  

proceedings in Article 105(3) of the Constitution;  

(l) The manner of enforcement of privilege by the legislature  

can result in judicial scrutiny, though subject to the restrictions  

contained in the other constitutional provisions, for example  

Article 122 or 212; and  

(m) Article 122(1) and Article 212(1) displace the broad  

doctrine of exclusive cognizance of the legislature in England  

of exclusive cognizance of internal proceedings of the House  

rendering irrelevant the case-law that emanated from courts in  

that jurisdiction; inasmuch as the same has no application to  

the system of governance provided by the Constitution of  

India;.”33                        

42 The decision in Raja Ram Pal has been adverted to in the subsequent  

judgment of the Constitution Bench in Amarinder Singh v Special Committee,  

Punjab Vidhan Sabha34. Chief Justice Balakrishnan, speaking for the  

Constitution Bench, held that all the privileges which have been claimed by the  

House of Commons cannot be claimed automatically by legislative bodies in  

India. Legislatures in India do not have the power of self-composition which is  

available to the House of Commons. Indian legislatures are governed by a  

written Constitution.   

   43 The limits of comparative law must weigh in the analysis in this area of  

constitutional law, when the Court is confronted by a copious attempt, during  

the course of submissions, to   find   meaning   in   the   nature   and   extent of

                                                           33 Id, at page 372  34 (2010) 6 SCC 113

PART F     

49    

parliamentary privilege in India from decided cases in the UK. The fundamental  

difference between the two systems lies in the fact that parliamentary  

sovereignty in the Westminster form of government in the UK has given way, in

the Indian Constitution, to constitutional supremacy. Constitutional supremacy  

mandates that every institution of governance is subject to the norms embodied  

in the constitutional text. The Constitution does not allow for the existence of  

absolute power in the institutions which it creates. Judicial review as a part of  

the basic features of the Constitution is intended to ensure that every institution  

acts within its bounds and limits. The fundamental rights guaranteed to citizens  

are an assurance of liberty and a recognition of the autonomy which inheres in

every person. Hence, judicial scrutiny of the exercise of parliamentary privileges  

is not excluded where a fundamental right is violated or a gross illegality occurs.  

In recognizing the position of Parliament as a coordinate institution created by  

the Constitution, judicial review acknowledges that Parliament can decide the  

expediency of asserting its privileges in a given case. The Court will not  

supplant such an assertion or intercede merely on the basis of an irregularity of  

procedure. But where a violation of a constitutional prescription is shown,  

judicial review cannot be ousted.   

F Separation of powers: a nuanced modern doctrine  

44 The submission of the Attorney General is that the carefully structured  

dividing lines between the judicial, executive and legislative wings of the state

PART F     

50    

would be obliterated if the court were to scrutinize or judicially review reports of  

parliamentary committees. The principle of separation, it has been submitted,  

interdicts the courts from scrutinizing or reviewing reports of parliamentary  

committees. Judicial review may well result in a conflict between the two  

institutions of the State and is hence – according to the submission – best  

eschewed.   

   45 Separation of powers between the legislature, the executive and the  

judiciary covers a large swathe of constitutional history spanning the writings of  

Montesquieu and Blackstone, to the work of Dicey and Jennings.  

Gerangelos (2009) laments that in the UK, parliamentary sovereignty has  

prevented the principle of separation from emerging as a judicially enforceable  

standard35:   

“Britain’s unwritten constitution and the influence of Diceyan  

orthodoxy, emphasising parliamentary sovereignty and a fusion  

of powers which did not countenance judicial invalidation of  

legislative action, has meant that the separation of powers has  

not become a source of judicially-enforceable constitutional  

limitations. The precise status of the doctrine has varied from  

time to time and the extent to which the doctrine nevertheless  

provides some restraint on legislative interference with judicial  

process cannot be determined with precision. It can be said,  

however, that constitutional entrenchment of the separation  

doctrine has not been part of the Westminster constitution  

tradition; a tradition which has not, in any event, placed much  

store by written constitutions with their accompanying legalism  

and rigidities. The prevailing influence from that quarter has  

been the maintenance of judicial independence in terms of  

institutional independence through the protection of tenure and  

remuneration, and afforded statutory protection in the Act of  

                                                           35 Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS,  

CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009).    

PART F     

51    

Settlement in 1701, as opposed to the protection of judicial  

power in a functional sense.”  

The impact of the doctrine is seen best in terms of the institutional  

independence of the judiciary from other organs of the state. The doctrine is  

stated to have been overshadowed in the UK “by the more dominant  

constitutional principles of parliamentary sovereignty and the rule of law”. For  

instance, in the UK, Ministers of Crown are both part of the executive and  

members of the Parliament. Until the Constitutional Reform Act, 2005 the Lord  

Chancellor was a member of the Cabinet and was eligible to sit as a judge in  

the Appellate Committee of the House of Lords. The Judicial Committee of the  

House of Lords was the highest court, even though the House constituted the  

Upper House of the legislature. In the enforcement of parliamentary privileges,  

the House exercises judicial functions. Delegated legislation enables the  

executive to exercise legislative functions.   

   46 Many contemporary scholars have differed on the normative importance  

of the doctrine of separation. One view is that while a distinct legislature,  

executive and judiciary can be identified as a matter of practice, this is not a  

mandate of the unwritten Constitution. The statement that there is a separation  

is construed to be descriptive and not normative36. On the other hand, other  

scholars regard the doctrine as “a fundamental underlying constitutional  

principle which informs the whole British constitutional structure”37. Yet, even  

                                                           36 See A Tomkins, PUBLIC LAW (Oxford University Press, 2003) 37 (as cited by Gerangelos at page 274).  37  E Barendt, ‘Separating of Powers and Constitutional Government’ [1995] Public Law 599 at 599-60,

PART F     

52    

scholars who emphasise the importance of the separation of powers in the UK  

acknowledge that the Constitution does not strictly observe such a separation.  

Courts in the UK do not possess a direct power of judicial review to invalidate  

legislation though, with the enactment of the Human Rights Act, the doctrine of  

incompatibility has become an entrenched feature of the law. Gerangelos  

(supra) states that “the most that can be said is that the separation of powers  

does play an influential role as a constitutional principle, but as a non-binding  

one”.38 He cites Professor Robert Stevens39:   

“In modern Britain the concept of the separation of powers is  

cloudy and the notion of the independence of the judiciary  

remains primarily a term of constitutional rhetoric. Certainly its  

penumbra, and perhaps even its core, are vague. No general  

theory exists, although practically the English have developed  

surprisingly effective informal systems for the separation of  

powers; although it should never be forgotten that the system  

of responsible government is based on a co-mingling of the  

executive with the legislature. The political culture of the United  

Kingdom, however, provides protections for the independence  

of the judiciary, which are missing in law.”  

The importance of the principle of separation essentially lies in the  

independence of the judiciary. The protections in the Act of Settlement 1701  

have now been reinforced in the Constitutional Reform Act, 2005. Though the  

supremacy of Parliament is one of the fundamental features in the UK and the  

unwritten Constitution does not mandate a strict separation of powers, it would  

be difficult to regard a state which has no control on legislative supremacy as a  

                                                               C Munro, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1999) at 304,      TRS Allan, Law Liberty and Justice, The Legal Foundations of British Constitutionalism (Oxford, Clarendon  

Press, 1993) chs 3 and 8, and TRS Allan, Constitutional Justice, A Liberal Theory of the Rule of Law (Oxford,  Oxford University Press, 2001)      

38 Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS,  CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009)  

39 R Stevens, ‘A Loss of Innocence?: Judicial Independence and the Separation of powers’ (1999) 19 OXFORD  JOURNAL OF LEGAL STUDIES 365.  

PART F     

53    

constitutional state founded on the rule of law40. Consequently, where the rule  

of law and constitutionalism govern society there may yet be fundamental  

principles inhering in the nature of the polity, which can be enforced by the  

judiciary even against Parliament, in the absence of a written Constitution41. In  

other words, even in the context of an unwritten Constitution, the law has a  

certain internal morality as a part of which it embodies fundamental notions of  

justice and fairness.   

   47 The interpretation of the doctrine of separation of powers has evolved  

from being a “one branch – one function approach”42 with limited exceptions, to  

a concept which involves an integration of the ‘division of work’ and ‘checks and  

balances’43. The primary aim of the doctrine today is to ensure the  

accountability of each wing of the State, while ensuring concerted action in  

respect of the functions of each organ for good governance in a democracy.  

The doctrine of separation of power has developed to fulfill the changing needs  

of society and its growing necessities. Many of these considerations are  

significantly different from those which were prevalent when Montesquieu  

originally formulated the doctrine.  

48  In 1967, MJC Vile in his book titled ‘Constitutionalism and the  

                                                           40 Allan, Law Liberty and Justice (supra note 36)  41 Gerangelos, at page 277.  42 Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David Dyzenhaus and Malcolm  

Thorburn (eds.) PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL LAW, (Oxford University Press, 2016) 221  (hereinafter, “Philosophical Foundations of Constitutional Law”).  

43 See MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford University Press, 1967).

PART F     

54    

Separation of Powers’44 defined the ‘pure doctrine’ of separation of powers  

thus:   

“[a] ‘pure doctrine’ of the separation of powers might be  

formulated in the following way: It is essential for the  

establishment and maintenance of political liberty that the  

government be divided into three branches or departments, the  

legislature, the executive, and the judiciary. To each of these  

three branches, there is a corresponding identifiable function  

of government, legislative, executive, or judicial. Each branch  

of the government must be confined to the exercise of its own  

function and not allowed to encroach upon the functions of the  

other branches. Furthermore, the persons who compose these  

three agencies of government must be kept separate and  

distinct, no individual being allowed to be at the same time a  

member of more than one branch. In this way, each of the  

branches will be a check to the others and no single group of  

people will be able to control the machinery of the State.”45  

This definition becomes important to facilitate an understanding of the  

reconstructed and modern view on separation of powers vis-à-vis its traditional  

understanding. Vile essentially proposes that ‘division of labor’ and ‘checks and  

balances’ are intrinsic to the theory of separation of powers. In his view, a  

scheme of checks and balances would involve a degree of mutual supervision  

among the branches of government, and may therefore result in a certain  

amount of interference by one branch into the functions and tasks of the other.46  

Aileen Kavanagh, has presented a scholarly analysis of separation of powers  

in a chapter titled ‘The Constitutional Separation of Powers’.47 She concurs  

with the view expressed by MJC Vile that separation of powers includes two  

                                                           44 Id.  45Id, at page 13  46 See, MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford University Press, 1967).  47Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David Dyzenhaus and Malcolm  Thorburn (eds.) PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL LAW, (Oxford University Press, 2016) 221.

PART F     

55    

components, that of ‘division of labour’ and ‘checks and balances’. These two  

components are strengthened by the deep-rooted ethos of coordinated  

institutional effort and joint activity between branches of the government in the  

interest of good governance.48 Instead of an isolated compartmentalization of  

branches of government, she highlights the necessary independence,  

interdependence, interaction and interconnection between these branches in a  

complex interactive setting.49 Kavanagh acknowledges that in view of the  

stronghold of the pure doctrine over our understanding of separation of powers,  

the idea of a collective enterprise between the branches of the government for  

the purpose of governing may seem jarring. However, she argues that this idea  

of “branches being both independent and interdependent-distinct but  

interconnected-also has some pedigree in canonical literature.”50 Kavanagh  

thus opines that the tasks of law-making, law-applying and law-executing are  

collaborative in nature, necessitating co-operation between the branches of the  

government in furtherance of the common objective of good governance.   

Kavanagh explains this as follows:  

“In some contexts, the interaction between the branches will be  

supervisory, where the goal is to check, review and hold the  

other to account. At other times, the interaction will be a form  

of cooperative engagement where the branches have to  

support each other’s role in the joint endeavor.”51   

                                                           48 See, D Kyritsis, ‘What is Good about Legal Conventionalism?’ (2008) 14 LEGAL THEORY 135, 154 (as cited in  

Philosophical Foundations of Constitutional Law, at page 235).  49 Id.  50 Philosophical Foundations of Constitutional Law, at page 236.  51 K Malleson, ‘The Rehabilitation of Separation of Powers in UK’ in L. de Groot-van Leeuwen and W Rombouts,  

SEPARATION OF POWERS IN THEORY AND PRACTICE: AN INTERNATIONAL PERSPECTIVE (Nijmegen: Wolf Publishing,  2010) 99-122, 115 (as cited in Philosophical Foundations of Constitutional Law, at page 237).

PART F     

56    

Jeremy Waldron has dealt with the relationships among officials or institutions  

in a State. He proposes that separation of powers is not just a principle involving  

the division of labour and the distribution of power but also includes inter-

institutional relationships between the three branches when carrying out their  

distinct roles as part of a joint enterprise. This is in order to facilitate, what  

Waldron called the ‘Principle of Institutional Settlement’.52 Further, inter-

institutional comity, which is the respect that one branch of the state owes to  

another, is also a significant factor, which calls for collaboration among  

branches of the government to ensure that general public values such as  

welfare, autonomy, transparency, efficiency and fairness are protected and  

secured for the benefit of citizens.53   

Thus, in a comparative international context, authors have accepted separation  

of powers to widely include two elements: ‘division of labour’ and ‘checks and  

balances’. The recent literature on the subject matter encourages inter-

institutional assistance and aid towards the joint enterprise of good governance.  

The current view on the doctrine of separation of powers also seeks to  

incorporate mutual supervision, interdependence and coordination because the  

ultimate aim of the different branches of the government, through their distinct  

functions is to ensure good governance and to serve public interest, which is  

essential in the background of growing social and economic interests in a  

                                                           52 J Waldron, ‘Authority for Officials’ in L. Meyer, S. Paulson and T. Pogge (eds), RIGHTS, CULTURE, AND THE LAW:  

THEMES FROM THE LEGAL AND POLITICAL PHILOSOPHY OF JOSEPH RAZ (Oxford University Press, 2003) 45-70.  53 See, J King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 OXFORD JOURNAL OF LEGAL STUDIES 409,  

428; See also, Buckley v. Attorney General [1950] Irish Reports 67, 80 (per O’Bryne J) (as cited in Philosophical  Foundations of Constitutional Law, at page 235).

PART F     

57    

welfare state. This stands in contrast with the former and original interpretation  

of the doctrine, which sought to compartmentalize and isolate the different  

branches of the government from one another, with limited permissible  

exceptions.   

49 Eoin Carolan’s book titled ‘The New Separation of Powers’ (2009)  

reflects an attempt to reshape the traditional doctrine of separation, to make it  

relevant to the practical realities of modern government. He notes that while the  

tripartite separation of powers between the legislature, executive and judiciary  

had “conceptual simplicity with an impeccable academic pedigree”54, the  

doctrine has obvious limitations in the sense that it does not satisfactorily  

explain the emergence and growth of the modern administrative State we see  

today. The author contends that an institutional theory like the separation of  

powers can no longer be accepted in its original form if it cannot account for  

this ‘significant tranche of government activity’. Among the characteristics of the  

modern administrative State is that public power is exercised in a decentralized  

manner and on an ever-growing discretionary basis.55   

The shared growth of administrative powers of the bureaucracy in the modern  

state defies the tripartite division. Therefore, a realistic modern application of  

the theory is necessary.   The modern system of government has grown in ways  

previously thought unfathomable, and now encompasses a breadth and  

                                                           54 Eoin Carolan, THE NEW SEPARATION OF POWERS- A THEORY FOR THE MODERN STATE (Oxford University Press, 2009)  

253.  55 Id.

PART F     

58    

diversity previously unseen. Government today is characterized by the increase  

in powers of its agencies and the rapid growth of organizations which can  

neither be classified as exclusively public or private bodies. These modern  

systems of government and the existence and rapid rise of supranational  

organizations defy the traditional three- way division of powers. Administrative  

bodies are not defined by a uniform design, and exercise institutional fluidity in  

a manner which has come to characterize the administrative state’s  

organizational complexity: In a single instance, they exercise powers and  

perform functions that might have been formerly classified as executive, judicial  

or legislative in nature.56 In this view, the modern State is distinctly different from  

Locke’s seventeenth century Model and Montesquieu’s eighteenth century  

ideas:  

 “The state is now dirigiste, discretionary, and broadly  

dispersed.”57  

 50 Carolan thus proposes that to be suitable, a theory of institutional justice  

must be rooted in the principle of non-arbitrariness. He believes that a more  

suitable approach of classification of institutions would be not by functions, but  

by constituencies, and the sole constituency in this legal framework is the  

individual citizen. Carolan’s proposed model places emphasis on the exercise  

of power on the basis of inter-institutional dialogue which ensures that a  

communicative process has taken place58. Carolan describes his model thus:  

                                                           56 Eoin Carolan, The Problems with the Theory of Separation of Powers’, SSRN, (2011) 26.  57 Supra note 53, 256  58 Supra note 53, 132

PART F     

59    

“The prescribed institutional structure operates by inter-organ  

mingling instead of separation. Individual decisions are  

delivered at the end of a multi institutional process, the central  

concern of which is to organize, structure, manage, and—

crucially—ensure the input of all relevant institutional interests.   

On this model, the government and the courts are presented  

as providing an orienting framework within which  

administrative decision-making will occur. These first-order  

organs function at the level of macro-social organization,  

adopting general measures which are expected to advance  

their constituent social interest. The government specifies the  

actions it feels are required (or requested) to enhance the  

position of the collective. The courts, for their part, insist on the  

process precautions necessary to secure individual protection.  

Issues of informational efficacy and non-arbitrariness combine  

to ensure, however, that these provisions are not  

particularized.”65  

   While the autonomy of the administration is respected as a vital institutional  

process, corrective measures are required where an institution has strayed  

outside the range of permissible outcomes. He speaks of a collaborative  

process of exercising power, with the judiciary acting as a restraining influence  

on the arbitrary exercise of authority.        

   51 While the Indian Constitution has been held to have recognized the  

doctrine of separation of powers, it does not adopt a rigid separation. In Ram  

Jawaya Kapur v State of Punjab59, this Court held:   

“12. …The Indian Constitution has not indeed recognised the  

doctrine of separation of powers in its absolute rigidity but the  

functions of the different parts or branches of the Government  

have been sufficiently differentiated and consequently it can  

very well be said that our Constitution does not contemplate  

assumption, by one organ or part of the State, of functions that  

essentially belong to another.”  

                                                           59 (1955) 2 SCR 225

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Reduced to its core, separation entails that one organ or institution of the state  

cannot usurp the powers of another.  

 In Re: Powers, Privileges and Immunities of State Legislatures60, this Court  

held that whether or not the Constitution brings about a “distinct and rigid  

separation of powers”, judicial review is an inseparable part of the judicial  

function. Whether legislative authority has extended beyond its constitutional  

boundaries or the fundamental rights have been contravened cannot be  

decided by the legislature, but is a matter entrusted exclusively to judicial  

decision.   

 In Kesavananda Bharati v State of Kerala61, separation of powers was  

regarded as a feature of the basic structure of the Indian Constitution. Chief  

Justice Sikri held:   

 “292. The learned Attorney-General said that every provision  

of the Constitution is essential; otherwise it would not have  

been put in the Constitution. This is true. But this does not  

place every provision of the Constitution in the same position.  

The true position is that every provision of the Constitution can  

be amended provided in the result the basic foundation and  

structure of the constitution remains the same. The basic  

structure may be said to consist of the following features:  

(1) Supremacy of the Constitution;  

(2) Republican and Democratic form of Government;  

(3) Secular character of the Constitution;  

(4) Separation of powers between the legislature, the  

executive and the judiciary;  

(5) Federal character of the Constitution.”62  

                                                           60 (1965) 1 SCR 413  61 (1973) 4 SCC 225   62 Id, at page 366

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Justices Shelat and Grover emphasized the doctrine of separation as a part of  

the checks and balances envisaged by the Constitution:   

“577. …There is ample evidence in the Constitution itself to  

indicate that it creates a system of checks and balances by  

reason of which powers are so distributed that none of the  

three organs it sets up can become so pre-dominant as to  

disable the others from exercising and discharging powers and  

functions entrusted to them. Though the Constitution does not  

lay down the principle of separation of powers in all its rigidity  

as is the case in the United States Constitution yet it envisages  

such a separation to a degree…”63  

In Indira Nehru Gandhi v Raj Narain64, Justice YV Chandrachud held that  

while the Constitution does not embody a rigid separation of governmental  

powers, a judicial function cannot be usurped by the legislature:  

“689. …the exercise by the legislature of what is purely and  

indubitably a judicial function is impossible to sustain in the  

context even of our cooperative federalism which contains no  

rigid distribution of powers but which provides a system of  

salutary checks and balances.”65  

The 39th amendment of the Constitution did precisely that and was held to  

violate the basic structure.  

 In I R Coelho v State of Tamil Nadu66, the Court underlined the functional  

complementarity between equality, the rule of law, judicial review and  

separation of powers:  

 “129. Equality, rule of law, judicial review and separation of  

powers form parts of the basic structure of the Constitution.  

Each of these concepts are intimately connected. There can  

be no rule of law, if there is no equality before the law. These  

                                                           63 Id, at page 452.  64 (1975) Suppl SCC 1  65 Id, at page 261.  66 (2007) 2 SCC 1

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would be meaningless if the violation was not subject to the  

judicial review. All these would be redundant if the legislative,  

executive and judicial powers are vested in one organ.  

Therefore, the duty to decide whether the limits have been  

transgressed has been placed on the judiciary.”67   

A Constitution Bench of this Court in State of Tamil Nadu v State of Kerala68  

ruled on the importance of separation as an entrenched constitutional principle.  

The court held:   

 “126.1. Even without express provision of the separation of  

powers, the doctrine of separation of powers is an entrenched  

principle in the Constitution of India. The doctrine of separation  

of powers informs the Indian constitutional structure and it is  

an essential constituent of rule of law. In other words, the  

doctrine of separation of power though not expressly engrafted  

in the Constitution, its sweep, operation and visibility are  

apparent from the scheme of Indian Constitution. Constitution  

has made demarcation, without drawing formal lines between  

the three organs—legislature, executive and judiciary. In that  

sense, even in the absence of express provision for separation  

of powers, the separation of powers between the legislature,  

executive and judiciary is not different from the Constitutions of  

the countries which contain express provision for separation of  

power.”69  

52 The doctrine of separation restrains the legislature from declaring a  

judgment of a court to be void and of no effect. However, in the exercise of its  

law making authority, a legislature possessed of legislative competence can  

enact validating law which remedies a defect pointed out in a judgment of a  

court. While the legislature cannot ordain that a decision rendered by the court  

is invalid, it may by enacting a law, take away the basis of the judgment such  

                                                           67 Id, at page 105  68 (2014) 12 SCC 696  69 Id, at page 771

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that the conditions on which it is based are so fundamentally altered that the  

decision could not have been given in the altered circumstances.70  

   53 In State of UP v Jeet S Bisht71, the Court held that the doctrine of  

separation of powers limits the “active jurisdiction” of each branch of  

government. However, even when the active jurisdiction of an organ of the  

State is not challenged, the doctrine allows for methods to be used to prod and  

communicate to an institution either its shortfalls or excesses in discharging its  

duty. The court recognized that fundamentally, the purpose of the doctrine is to  

act as a scheme of checks and balances over the activities of other organs.    

The Court noted that the modern concept of separation of powers subscribes  

to the understanding that it should not only demarcate the area of functioning  

of various organs of the State, but should also, to some extent, define the  

minimum content in that delineated area of functioning.  

 Justice SB Sinha addressed the need for the doctrine to evolve, as  

administrative bodies are involved in the dispensation of socio-economic  

entitlements:  

 “83. If we notice the evolution of separation of powers doctrine,  

traditionally the checks and balances dimension was only  

associated with governmental excesses and violations. But in  

today's world of positive rights and justifiable social and  

economic entitlements, hybrid administrative bodies, private  

functionaries discharging public functions, we have to perform  

                                                           70 I.N. Saksena v. State of MP (1976) 4 SCC 750; Indian Aluminium Co. v. State of Kerala (1996) 7 SCC 637; S.S  

Bola and Others v. B.D Sardana & Others (1997) 8 SCC 522; Shri Prithvi Cotton Mills Ltd. v. Broach Borough  Municipality (1969) 2 SCC 283; Supreme Court Advocates-on-Record-Association and Ors. v. Union of India  (2016) 5 SCC 1  

71 (2007) 6 SCC 586

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the oversight function with more urgency and enlarge the field  

of checks and balances to include governmental inaction.  

Otherwise we envisage the country getting transformed into  

a state of repose. Social engineering as well as institutional  

engineering therefore forms part of this obligation.”72   

 54 The constitutional validity of the Members of Parliament Local Area  

Development (“MPLAD”) Scheme, which allocates funds to MPs for  

development work in their constituencies was considered by a Constitution  

Bench of this Court in Bhim Singh v Union of India73. The challenge was that  

by entrusting funds to MPs, the Scheme vests governmental functions in  

legislators and violates the separation of powers.  The Court held that while the  

concept of separation of powers is not found explicitly in a particular  

constitutional provision, it “is inherent in the polity the Constitution has adopted”.  

The Constitution Bench perceived that there is a link between separation and  

the need to ensure accountability of each branch of government. While the  

Constitution does not prohibit overlapping functions, what it prohibits is the  

exercise of functions by a branch in a way which “results in wresting away of  

the regime of constitutional accountability.” The Court held that by allowing  

funds to be allocated to Members of Parliament for addressing the development  

needs of their constituencies, the MPLAD Scheme does not breach the doctrine  

of separation of powers. The administration of the scheme was adequately  

supervised by district authorities.  

                                                           72 Id, at page 619  73 (2010) 5 SCC 538

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65    

55 In Supreme Court Advocates-on-Record Association v Union of  

India74, Justice Madan B Lokur observed that separation of powers does not  

envisage that each of the three organs of the State – the legislature, executive  

and judiciary - work in a silo. The learned judge held:  

 “678. There is quite clearly an entire host of parliamentary and  

legislative checks placed on the judiciary whereby its  

administrative functioning can be and is controlled, but these  

do not necessarily violate the theory of separation of powers or  

infringe the independence of the judiciary as far as decision-

making is concerned. As has been repeatedly held, the theory  

of separation of powers is not rigidly implemented in our  

Constitution, but if there is an overlap in the form of a check  

with reference to an essential or a basic function or element of  

one organ of State as against another, a constitutional issue  

does arise. It is in this context that the 99th Constitution  

Amendment Act has to be viewed—whether it impacts on a  

basic or an essential element of the independence of the  

judiciary, namely, its decisional independence.”75                                 

56 In State of West Bengal v Committee for Protection of Democratic  

Rights, West Bengal76, this Court held that the doctrine of separation of  

powers could not be invoked to limit the Court’s power to exercise judicial  

review, in a case where fundamental rights are sought to be breached or  

abrogated on the ground that exercise of the power would impinge upon the  

doctrine.  

     57 In a more recent decision of a Bench of two learned judges of this Court  

in Common Cause v Union of India77, the Court construed the provisions of  

                                                           74 (2016) 5 SCC 1  75 Id, at page 583  76 (2010) 3 SCC 571  77 (2017) 7 SCC 158

PART F     

66    

the Lokpal and Lokayuktas Act, 2013 under which a multi-member selection  

committee for the appointment of the Lokpal is to consist, among others, of the  

Leader of the Opposition. A Bill for amending the provisions of the Act was  

referred to a parliamentary committee which proposed the inclusion of the  

leader of the largest opposition party in the Lok Sabha as a member, in lieu of  

the Leader of the Opposition in the selection committee. The grievance of the  

petitioners was that despite the enactment of the law, its provisions had not  

been implemented. It was urged that even if there is no recognized Leader of  

the Opposition in the Lok Sabha, the leader of the single largest opposition party  

should be inducted as a part of the Selection Committee. Justice Ranjan Gogoi  

speaking for this Court held thus:   

“18. There can be no manner of doubt that the parliamentary  

wisdom of seeking changes in an existing law by means of an  

amendment lies within the exclusive domain of the legislature  

and it is not the province of the Court to express any opinion  

on the exercise of the legislative prerogative in this regard. The  

framing of the Amendment Bill; reference of the same to the  

Parliamentary Standing Committee; the consideration thereof  

by the said Committee; the report prepared along with further  

steps that are required to be taken and the time-frame thereof  

are essential legislative functions which should not be  

ordinarily subjected to interference or intervention of the Court.  

The constitutional doctrine of separation of powers and the  

demarcation of the respective jurisdiction of the Executive, the  

Legislature and the Judiciary under the constitutional  

framework would lead the Court to the conclusion that the  

exercise of the amendment of the Act, which is presently  

underway, must be allowed to be completed without any  

intervention of the Court. Any other view and any interference,  

at this juncture, would negate the basic constitutional principle  

that the legislature is supreme in the sphere of law-making.  

Reading down a statute to make it workable in a situation  

where an exercise of amendment of the law is pending, will not  

be justified either. A perception, however strong, of the  

imminent need of the law engrafted in the Act and its beneficial  

effects on the citizenry of a democratic country, by itself, will

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not permit the Court to overstep its jurisdiction. Judicial  

discipline must caution the Court against such an approach.”78               

58 While assessing the impact of the separation of powers upon the present  

controversy, certain precepts must be formulated. Separation of powers  

between the legislature, the executive and the judiciary is a basic feature of the  

Constitution. As a foundational principle which is comprised within the basic  

structure, it lies beyond the reach of the constituent power to amend. It cannot  

be substituted or abrogated. While recognizing this position, decided cases  

indicate that the Indian Constitution does not adopt a separation of powers in  

the strict sense. Textbook examples of exceptions to the doctrine include the  

power of the executive to frame subordinate legislation, the power of the  

legislature to punish for contempt of its privileges and the authority entrusted to  

the Supreme Court and High Courts to regulate their own procedures by framing  

rules.  In making subordinate legislation, the executive is entrusted by the  

legislature to make delegated legislation, subject to its control. The rule making  

power of the higher judiciary has trappings of a legislative character. The power  

of the legislature to punish for contempt of its privileges has a judicial character.  

These exceptions indicate that the separation doctrine has not been adopted in  

the strict form in our Constitution.  But the importance of the doctrine lies in its  

postulate that the essential functions entrusted to one organ of the state cannot  

be exercised by the other. By standing against the usurpation of constitutional  

powers entrusted to other organs, separation of powers supports the rule of law  

                                                           78 Id, at page 173

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68    

and guards against authoritarian excesses. Parliament and the State  

Legislatures legislate. The executive frames policies and administers the law.   

The judiciary decides and adjudicates upon disputes in the course of which facts  

are proved and the law is applied. The distinction between the legislative  

function and judicial functions is enhanced by the basic structure doctrine. The  

legislature is constitutionally entrusted with the power to legislate. Courts are  

not entrusted with the power to enact law. Yet, in a constitutional democracy  

which is founded on the supremacy of the Constitution, it is an accepted  

principle of jurisprudence that the judiciary has the authority to test the validity  

of legislation. Legislation can be invalidated where the enacting legislature lacks  

legislative competence or where there is a violation of fundamental rights.  A  

law which is constitutionally ultra vires can be declared to be so in the exercise  

of the power of judicial review. Judicial review is indeed also a part of the basic  

features of the Constitution. Entrustment to the judiciary of the power to test the  

validity of law is an established constitutional principle which co-exists with the  

separation of powers. Where a law is held to be ultra vires there is no breach of  

parliamentary privileges for the simple reason that all institutions created by the  

Constitution are subject to constitutional limitations.  The legislature, it is well  

settled, cannot simply declare that the judgment of a court is invalid or that it  

stands nullified.  If the legislature were permitted to do so, it would travel beyond  

the boundaries of constitutional entrustment. While the separation of powers  

prevents the legislature from issuing a mere declaration that a judgment is  

erroneous or invalid, the law-making body   is   entitled  to   enact  a   law   which

PART G     

69    

remedies the defects which have been pointed out by the court.  Enactment of  

a law which takes away the basis of the judgment (as opposed to merely  

invalidating it) is permissible and does not constitute a violation of the  

separation doctrine. That indeed is the basis on which validating legislation is  

permitted.  

   59 This discussion leads to the conclusion that while the separation of  

powers, as a principle, constitutes the cornerstone of our democratic  

Constitution, its application in the actual governance of the polity is nuanced.   

The nuances of the doctrine recognize that while the essential functions of one  

organ of the state cannot be taken over by the other and that a sense of  

institutional comity must guide the work of the legislature, executive and  

judiciary, the practical problems which arise in the unfolding of democracy can  

be resolved through robust constitutional cultures and mechanisms. The  

separation doctrine cannot be reduced to its descriptive content, bereft of its  

normative features. Evidently, it has both normative and descriptive features. In  

applying it to the Indian Constitution, the significant precept to be borne in mind  

is that no institution of governance lies above the Constitution. No entrustment  

of power is absolute.

G A functional relationship      60 What then does the above analysis tell us about the functional  

relationship of the work which is done by parliamentary committees and the role

PART G     

70    

of the court as an adjudicator of disputes? In assessing the issue, it must be  

remembered, that parliamentary committees owe their existence to Parliament.  

They report to Parliament. They comprise of the members of Parliament. Their  

work consists of tendering advice to the legislature. A parliamentary committee  

does not decide a lis between contesting disputants nor does it perform an  

adjudicatory function. A committee appointed by the House can undoubtedly  

receive evidence, including expert evidence, both oral and documentary. A  

Select Committee may be appointed by the House to scrutinize a Bill. When the  

committee performs its task, its report is subject to further discussion and  

debate in the House in the course of which the legislative body would decide as  

to whether the Bill should be enacted into law. The validity of the advice which  

is tendered by a parliamentary committee in framing its recommendations for  

legislation cannot be subject to a challenge before a court of law.  The advice  

tendered is, after all, what it purports to be: it is advice to the legislating body.  

The correctness of or the expediency or justification for the advice is a matter  

to be considered by the legislature and by it alone.  

61 Department related standing committees are constituted by Parliament to  

oversee the functioning of ministries/departments of government.  It is through  

the work of these committees that Parliament exacts the accountability of the  

executive. It is through the work of these committees that Parliament is able to  

assess as to whether the laws which it has framed are being implemented in

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71    

letter and spirit and to determine the efficacy of government policies in meeting  

the problems of the day.  

   62 The contents of the report of a parliamentary committee may have a  

bearing on diverse perspectives. It is necessary to elucidate them in order to  

determine whether, and if so to what extent, they can form the subject matter of  

consideration in the course of adjudication in a court.  Some of these  

perspectives are enumerated below:  

(i) The report of a parliamentary committee may contain a statement of  

position by government on matters of policy;  

(ii) The report may allude to statements made by persons who have deposed  

before the Committee;  

(iii) The report may contain inferences of fact including on the performance  

of government in implementing policies and legislation;  

(iv) The report may contain findings of misdemeanor implicating a breach of  

duty by public officials or private individuals or an evasion of law; or  

(v) The report may shed light on the purpose of a law, the social problem  

which the legislature had in view and the manner in which it was sought  

to be remedied.  

63 The use of parliamentary history as an aid to statutory construction is an  

area which poses the fewest problems.  In understanding the true meaning of  

the words used by the legislature, the court may have regard to the reasons

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72    

which have led to the enactment of the law, the problems which were sought to  

be remedied and the object and purpose of the law.  For understanding this, the  

court may seek recourse to background parliamentary material associated with  

the framing of the law. In his seminal work on the Interpretation of Statutes,  

Justice G P Singh notes that the traditional rule of exclusion in English Courts  

has over a period of time been departed from in India as well to permit the court  

to have access to the historical background in which the law was enacted.   

Justice G P Singh79 notes:  

“The Supreme Court, speaking generally, to begin with,  

enunciated the rule of exclusion of Parliamentary history in the  

way it was traditionally enunciated by the English Courts, but  

on many an occasion, the court used this aid in resolving  

questions of construction.  The court has now veered to the  

view80 that legislative history within circumspect limits may be  

consulted by courts in resolving ambiguities. But the courts still  

sometimes, like the English courts, make a distinction between  

use of a material for finding the mischief dealt with by the Act  

and its use for finding the meaning of the Act. As submitted  

earlier this distinction is unrealistic and has now been  

abandoned by the House of Lords.”  

64 Reports of parliamentary committees may contain a statement of position  

by government on matters of policy. There is no reason in principle to exclude  

recourse by a court to the report of the committee at least as a reflection of the  

fact that such a statement was made before the committee. Similarly, that a  

statement was made before the committee - as a historical fact - may be taken  

note of by the court in a situation where the making of the statement itself is not  

a contentious issue.    

                                                           79 Justice G P Singh, PRINCIPLES OF STATUTORY INTERPRETATION (14th edn.) 253.  80 Kesavananda Bharati v. State of Kerala 1973 (4) SCC 225; Tata Power Co. Ltd. v. Reliance Energy Ltd (2009)  

16 SCC 659; Namit Sharma v. Union of India (2013) 1 SCC 745.

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73    

65 In matters involving public interest which come up before the court, a  

grievance is often made of the violation of the fundamental rights of persons  

who by reason of poverty, ignorance or marginalized status are unable to seek  

access to justice. Public interest litigation has been perceived as social action  

litigation because a relaxation of the rules of standing has enabled constitutional  

courts to reach out to those who have suffered discrimination and prejudice.   

Whatever be the source of such discrimination – the feudal and patriarchal  

structures of Indian society being among them – public interest litigation has  

enabled courts to develop flexible tools of decision making and pursue  

innovative remedies. The writ of continuing mandamus is one of them. In the  

process, the violation of the fundamental rights of those groups of citizens who  

may not be able to seek access to justice is sought to be remedied.  Public  

interest litigation has emerged as a powerful tool to provide justice to the  

marginalized.  In matters involving issues of public interest, courts have been  

called upon to scrutinize the failure of the state or its agencies to implement law  

and to provide social welfare benefits to those for whom they are envisaged  

under legislation.  Courts have intervened to ensure the structural probity of the  

system of democratic governance. Executive power has been made  

accountable to the guarantee against arbitrariness (Article 14) and to  

fundamental liberties (principally Articles 19 and 21).  

   66 Committees of Parliament attached to ministries/departments of the  

government perform the function of holding government accountable to

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74    

implement its policies and its duties under legislation. The performance of  

governmental agencies may form the subject matter of such a report.  In other  

cases, the deficiencies of the legislative framework in remedying social wrongs  

may be the subject of an evaluation by a parliamentary committee.  The work  

of a parliamentary committee may traverse the area of social welfare either in  

terms of the extent to which existing legislation is being effectively implemented  

or in highlighting the lacunae in its framework. There is no reason in principle  

why the wide jurisdiction of the High Courts under Article 226 or of this Court  

under Article 32 should be exercised in a manner oblivious to the enormous  

work which is carried out by parliamentary committees in the field. The work of  

the committee is to secure alacrity on the part of the government in alleviating  

deprivations of social justice and in securing efficient and accountable  

governance.  When courts enter upon issues of public interest and adjudicate  

upon them, they do not discharge a function which is adversarial.  The  

constitutional function of adjudication in matters of public interest is in step with  

the role of parliamentary committees which is to secure accountability,  

transparency and responsiveness in government. In such areas, the doctrine of  

separation does not militate against the court relying upon the report of a  

parliamentary committee.  The court does not adjudge the validity of the report  

nor for that matter does it embark upon a scrutiny into its correctness.  There is  

a functional complementarity between the purpose of the investigation by the  

parliamentary committee and the adjudication by the court. To deprive the court  

of the valuable insight of a parliamentary committee would amount to excluding

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75    

an important source of information from the purview of the court.  To do so on  

the supposed hypothesis that it would amount to a breach of parliamentary  

privilege would be to miss the wood for the trees. Once the report of the  

parliamentary committee has been published it lies in the public domain.  Once  

Parliament has placed it in the public domain, there is an irony about the  

executive relying on parliamentary privilege. There is no reason or justification  

to exclude it from the purview of the material to which the court seeks recourse  

to understand the problem with which it is required to deal. The court must look  

at the report with a robust common sense, conscious of the fact that it is not  

called upon to determine the validity of the report which constitutes advice  

tendered to Parliament. The extent to which the court would rely upon a report  

must necessarily vary from case to case and no absolute rule can be laid down  

in that regard.  

67 There may, however, be contentious matters in the report of a  

parliamentary committee in regard to which the court will tread with  

circumspection. For instance, the report of the committee may contain a finding  

of misdemeanor involving either officials of the government or private  

individuals bearing on a violation of law. If the issue before the court for  

adjudication is whether there has in fact been a breach of duty or a violation of  

law by a public official or a private interest, the court would have to deal with it  

independently and arrive at its own conclusions based on the material before it.  

Obviously in such a case the finding by a Parliamentary Committee cannot

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76    

constitute substantive evidence before the court. The parliamentary committee  

is not called upon to decide a lis or dispute involving contesting parties and  

when an occasion to do so arises before the court, it has to make its  

determination based on the material which is admissible before it.  An individual  

whose conduct has been commented upon in the report of a parliamentary  

committee cannot be held guilty of a violation on the basis of that finding. In  

Jyoti Harshad Mehta v The Custodian81, this Court held that a report of the  

Janakiraman committee could not have been used as evidence by the Special  

Court.  The court held:  

“57. It is an accepted fact that the reports of the Janakiraman  

Committee, the Joint Parliamentary Committee and the Inter-

Disciplinary Group (IDG) are admissible only for the purpose  

of tracing the legal history of the Act alone. The contents of the  

report should not have been used by the learned Judge of the  

Special Court as evidence.”82  

68 Section 57 of the Indian Evidence Act 1872 speaks of facts of which the  

court must take judicial notice.  Section 57 is comprised in Part II (titled ‘On  

proof’).  Chapter III deals with facts which need not be proved.  Section 57(4)  

provides as follows:  

“57. Facts of which Court must take judicial notice – The Court  

shall take judicial notice of the following facts:-  

   ***   

(4). The course of proceeding of Parliament of the United  

Kingdom, of the Constituent Assembly of India, of Parliament  

and of the legislatures established under any law for the time  

being in force in a Province or in the State.”  

                                                           81 (2009) 10 SCC 564  82 Id, at page 582

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In The Sole Trustee, Lok Shikshana Trust v The Commissioner of Income  

Tax, Mysore83, a three judge Bench of this Court, while construing Section  

57(4) made a distinction between the fact that a particular statement is made in  

Parliament and the correctness of what is stated on a question of fact. The  

former could be relied upon. However, the truth of a disputable question of fact  

would have to be independently proved before the court. Justice HR Khanna  

observed thus:  

  “33. We find that Section 57, sub-section (4) of the Evidence  

Act not only enables but enjoins courts to take judicial notice of  

the course of proceedings in Parliament assuming, of course,  

that it is relevant. It is true that the correctness of what is stated,  

on a question of fact, in the course of parliamentary  

proceedings, can only be proved by somebody who had direct  

knowledge of the fact stated. There is, however, a distinction  

between the fact that a particular statement giving the purpose  

of an enactment was made in Parliament, of which judicial  

notice can be taken as part of the proceedings, and the truth of  

a disputable matter of fact stated in the course of proceedings,  

which has to be proved aliunde, that is to say, apart from the  

fact that a statement about it was made in the course of  

proceedings in Parliament (see: Rt. Hon'ble Jerald Lord  

Strickland v. Carmelo Mifud Bonnici [AIR 1935 PC 34 : 153 IC  

1] ; the Englishman Ltd. v. Lajpat Rai, ILR 37 Cal 760: 6 IC 81:  

14 CWN 945.”84  

A statement made by the Finance Minister while proposing amendment could,  

it was held, be taken judicial notice of. Judicial notice would be taken of the fact  

that “such a statement of the reason was given in the course of such a speech”.  

                                                           83 (1976) 1 SCC 254  84 Id, at page 272

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78    

In Onkar Nath v The Delhi Administration85, another Bench of three judges  

elaborated upon Section 57(4). Justice YV Chandrachud, speaking for the  

Court, held thus:   

 “6. One of the points urged before us is whether the courts  

below were justified in taking judicial notice of the fact that on  

the date when the appellants delivered their speeches a  

railway strike was imminent and that such a strike was in fact  

launched on May 8, 1974. Section 56 of the Evidence Act  

provides that no fact of which the Court will take judicial notice  

need be proved. Section 57 enumerates facts of which the  

Court “shall” take judicial notice and states that on all matters  

of public history, literature, science or art the Court may resort  

for its aid to appropriate books or documents of reference. The  

list of facts mentioned in Section 57 of which the Court can take  

judicial notice is not exhaustive and indeed the purpose of the  

section is to provide that the Court shall take judicial notice of  

certain facts rather than exhaust the category of facts of which  

the Court may in appropriate cases take judicial notice.  

Recognition of facts without formal proof is a matter of  

expediency and no one has ever questioned the need and  

wisdom of accepting the existence of matters which are  

unquestionably within public knowledge. (See Taylor, 11th  

Edn., pp. 3-12; Wigmore, Section 2571, footnote; Stephen's  

Digest, notes to Article 58; Whitley Stokes' Anglo-Indian  

Codes, Vol. II, p. 887.) Shutting the judicial eye to the existence  

of such facts and matters is in a sense an insult to  

commonsense and would tend to reduce the judicial process  

to a meaningless and wasteful ritual. No court therefore insists  

on formal proof, by evidence, of notorious facts of history, past

or present. The date of poll, the passing away of a man of  

eminence and events that have rocked the nation need no  

proof and are judicially noticed. Judicial notice, in such matters,  

takes the place of proof and is of equal force.”86  

In Baburao Alias P B Samant v Union of India87, the court observed thus:  

 “31. The Lok Sabha Debates and the Rajya Sabha Debates  

are the journals or the reports of the two Houses of Parliament  

which are printed and published by them. The court has to take  

judicial notice of the proceedings of both the Houses of  

                                                           85 (1977) 2 SCC 611  86 Id, at page 614  87 1988 (Supp.) SCC 401

PART H     

79    

Parliament and is expected to treat the proceedings of the two  

Houses of Parliament as proved on the production of the  

copies of the journals or the reports

containing proceedings of the two Houses of Parliament which  

are published by them.”88   

These observations were in the context, specifically, of the provisions of the  

Evidence Act, including Section 57(4). The court held that the production of  

debates of the Lok Sabha and Rajya Sabha containing the proceedings of the  

two Houses of Parliament, relating to the period between the time when the  

resolutions were moved in each of the two Houses and the time when the  

resolutions were duly adopted amounted to proof of the resolutions. The court  

was required to take judicial notice under Section 57.

H Conclusion  

69 The issue which has been referred to the Constitution Bench is whether  

the report of a Parliamentary Standing Committee can be relied upon in a  

proceeding under Article 32 or Article 136 of the Constitution.  Allied to this is  

whether parliamentary privileges and the doctrine of separation of powers  

(shades of which find expression in the often-used phrase ‘the delicate  

balance’) impose restraints on the ability of the court to seek recourse to  

parliamentary reports.    

                                                           88 Id, at page 414

PART H     

80    

70 In finding an answer to the questions in reference, this Court must of  

necessity travel from a literal and perhaps superficial approach, to an  

understanding of the essence of what the Constitution seeks to achieve. At one  

level, our Constitution has overseen the transfer of political power from a  

colonial regime to a regime under law of a democratic republic. Legitimizing the  

transfer of political power is one, but only one facet of the Constitution. To focus  

upon it alone is to miss a significant element of the constitutional vision.  That  

vision is of about achieving a social transformation.  This transformation which  

the Constitution seeks to achieve is by placing the individual at the forefront of  

its endeavours. Crucial to that transformation is the need to reverse the  

philosophy of the colonial regime, which was founded on the subordination of  

the individual to the state.  Liberty, freedom, dignity and autonomy have  

meaning because it is to the individual to whom the Constitution holds out an  

assurance of protecting fundamental human rights.  The Constitution is about  

empowerment.  The democratic transformation to which it aspires places the  

individual at the core of the concerns of governance. For a colonial regime,  

individuals were subordinate to the law. Individuals were subject to the authority  

of the state and their well-being was governed by the acceptance of a destiny  

wedded to its power.  Those assumptions which lay at the foundation of colonial  

rule have undergone a fundamental transformation for a nation of individuals  

governed by the Constitution. The Constitution recognises their rights and  

entitlements. Empowerment of individuals through the enforcement of their  

rights is the essence of the constitutional purpose.  Hence, in understanding the

PART H     

81    

issues which have arisen before the Court in the present reference, it is well to  

remind ourselves that since the Constitution is about transformation and its  

vision is about empowerment, our reading of precepts drawn from a colonial  

past, including parliamentary privilege, must be subjected to a nuance that  

facilitates the assertion of rights and access to justice.  We no longer live in a  

political culture based on the subordination of individuals to the authority of the  

State.   Our interpretation of the Constitution must reflect a keen sense of  

awareness of the basic change which the Constitution has made to the polity  

and to its governance.  

   71 A distinguished South African Judge, Albie Sachs has spoken of the  

importance of understanding the value of constitutional transformation.  In his  

book titled ‘The Strange Alchemy of Life and Law’89, explaining the role of the  

constitutional court, Sachs has this to say:  

“It is difficult to analyse the impact that court decisions have on  

actual historical events.  It may well be that the publicity given  

to the case, and the evidence and arguments presented had  

more impact on public life than did the actual decision. Yet any  

amount of forensic combat, however bitter and prolonged, is  

better than a single bullet.  Submitting the harsh conflicts of our  

times to legal scrutiny – conducted transparently and in the  

light of internationally accepted values of fairness and justice –  

was a telling rebuttal of mercenarism and violence, whether  

from or against the State.  It responded in a practical way to  

the immediate issues, and at the same time induced  

governments, judiciaries, and law enforcement agencies in  

three countries to engage with each other and carefully  

consider their powers and responsibilities under the  

international law.  It reaffirmed to the South African public that  

we were living in a constitutional democracy in which all  

exercises of power were subject to constitutional control.   

It said something important about the kind of country in which  

                                                           89 Justice Albie Sachs, The Strange Alchemy of Life and Law (Oxford University Press 2009) pages 32-33.

PART H     

82    

we lived and about the importance of principled and reasoned  

debate.  It underlined that we had moved from a culture of  

authority and submission to the law, to one of justification  

and rights under the law.”      (emphasis supplied)   

 72 In India, no less than in South Africa it is important to realise that citizens  

live in a constitutional democracy in which every exercise of power is subject  

to constitutional control. Every institution of the State is subject to the  

Constitution.  None lies above it. The most important feature of Sachs’ vision  

relevant to our Constitution is that Indian society must move “from the culture  

of authority and submission to the law, to one of justification and rights under  

the law”.  

   73 Once we place the fulfilment of individual rights and human freedoms at  

the forefront of constitutional discourse, the resolution of the present case  

presents no difficulty. Individuals access courts to remedy injustice. As  

institutions which are committed to the performance of a duty to facilitate the  

realisation of human freedom, High Courts as well as this Court are under a  

bounden obligation to seek and pursue all information on the causes of  

injustice. Where the work which has been performed by a coordinate  

constitutional institution – in this case a Parliamentary Committee, throws light  

on the nature of the injustice or its causes and effects, constitutional theory  

which has to aid justice cannot lead us to hold that the court must act oblivious  

to the content of the report. History and contemporary events across the world  

are a reminder that black-outs of information are used as a willing ally to

PART H     

83    

totalitarian excesses of power. They have no place in a democracy. Placing  

reliance on the report of a Parliamentary Committee does not infringe  

parliamentary privilege. No Member of Parliament is sought to be made liable  

for what has been said or for a vote tendered in the course of a debate.  The  

correctness or validity of the report of a Parliamentary Committee is not a  

matter which can be agitated before the Court nor does the Court exercise such  

a function.  Where an issue of fact becomes contentious, it undoubtedly has to  

be proved before a court independently on the basis of the material on the  

record. In other words, where a fact referred to in the report of the Parliamentary  

Committee is contentious, the court has to arrive at its own finding on the basis  

of the material adduced before it.     

   74 Parliamentary Committees are an intrinsic part of the process by which  

the elected legislature in a democracy exacts accountability on the part of the  

government.  Department related Parliamentary Standing Committees  

undertake the meticulous exercise of scrutinizing the implementation of law,  

including welfare legislation and the performance of the departments of the  

State. The purpose of law is to promote order for the benefit of the citizen and  

to protect rights and entitlements guaranteed by the Constitution and by statute.   

Access to justice as a means of securing fundamental freedoms and realizing  

socio-economic entitlements is complementary to the work of other organs of  

the State.  The modern doctrine of separation of powers has moved away from  

a ‘one organ – one function’ approach, to a more realistic perspective which

PART H     

84    

recognizes the complementarity in the work which is performed by institutions  

of governance. Judicial review is founded on the need to ensure accountable  

governance in the administration of law as an instrument of realizing the rights  

guaranteed by the Constitution. If the function of judicial review in facilitating  

the realization of socio-economic rights is construed in the context of the  

modern notion of separation of powers, there is no real conflict between the  

independence of the judicial process and its reliance on published reports of  

Parliamentary Committees. Ultimately it is for the court in each case to  

determine the relevance of a report to the case at hand and the extent to which  

reliance can be placed upon it to facilitate access to justice. Reports of  

Parliamentary Committees become part of the published record of the State.   

As a matter of principle, there is no reason or justification to exclude them from  

the purview of the judicial process, for purposes such as understanding the  

historical background of a law, the nature of the problem, the causes of a social  

evil and the remedies which may provide answers to intractable problems of  

governance. The court will in the facts of a case determine when a matter which  

is contentious between the parties would have to be adjudicated upon  

independently on the basis of the evidence adduced in accordance with law.  

   In the circumstances, the reference is answered by holding that:  

(i) As a matter of principle, there is no reason why reliance upon the report  

of a Parliamentary Standing Committee cannot be placed in proceedings  

under Article 32 or Article 136 of the Constitution;

PART H     

85    

(ii) Once the report of a Parliamentary Committee has been published,  

reference to it in the course of judicial proceedings will not constitute a  

breach of parliamentary privilege;  

(iii) The validity of the report of a Parliamentary Committee cannot be called  

into question in the court. No Member of Parliament or person can be  

made liable for what is stated in the course of the proceedings before a  

Parliamentary Committee or for a vote tendered or given; and  

(iv) When a matter before the court assumes a contentious character, a  

finding of fact by the court must be premised on the evidence adduced  

in the judicial proceeding as explained in paragraphs 67 and 73.  

 75 The issues framed for reference are accordingly answered.    

 76 The proceedings may now be placed before the Hon’ble Chief Justice for  

assignment of the case for disposal.   

        ………........................................J  

                             [A K SIKRI]          

...….............................................J                      [Dr  D Y  CHANDRACHUD]  

         New Delhi;  May 9, 2018.  

1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 558 OF 2012

KALPANA MEHTA AND ORS.   ... PETITIONERS

VERSUS

UNION OF INDIA AND ORS.    ... RESPONDENTS

WITH WRIT PETITION (C) NO. 921 OF 2013(PIL­W)

J U D G M E N T

ASHOK BHUSHAN, J.

This Constitution Bench is required to answer some

important Constitutional issues which also involve

issues relating to delicate balance between the

Parliament and the Judiciary. The Hon'ble Chief

Justice has circulated His Lordships' judgment which

has been carefully read by me. Although I am in

substantial agreement with the conclusions arrived by

My Lord the Chief Justice, but looking to the

importance of the issues involved I have penned my own

2

views & conclusions.

2. Whether acceptance and reliance on a Parliamentary

Standing Committee Report by this Court while hearing

a Public Interest Writ Petition amount to breach of

any privilege of the Parliament, is the sum &

substance of the questions referred to this

Constitution Bench. During course of hearing of these

Writ Petitions, learned senior counsel of respondent

No. 8 (M.S.D. Pharmaceuticals Private Limited) raised

objection  regarding admissibility  & consideration  of

the Parliamentary Committee Report, considering which

objections following two questions have been referred

to be answered:  

“(i) Whether in a litigation filed before this  Court  either under Article 32 or Article 136 of the Constitution of India, the Court 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 and 122 of the Constitution conceive?”

3

3. The background facts as disclosed by the two writ

petitions giving rise to the above two questions need

to be noted now:

WRIT PETITION (C) NO.558 OF 2012

The Writ Petition as a Public Interest Litigation

has been filed by three petitioners, petitioner Nos.1

and 2 claim to be working for women health whereas the

Petitioner No.3 is a registered Society working with

women organisations to help them to improve their

lives and livelihood and to seek justice for

marginalised communities. In July, 2009, the

petitioners became aware of a so called demonstration

project work being carried out in States of Andhra

Pradesh and Gujarat by PATH (respondent No.6), a US

based NGO along with the Indian Council of Medical

Research(ICMR) and Governments of Andhra Pradesh and

Gujarat. In the above project about 32,000 young

adolescent girls in the age group of 10­14 years were

to be administered HPV (Human Papilloma Virus)

vaccines purported to be effective in preventing

4

cervical cancer. HPV vaccine, namely, “Gardasil” is

manufactured by respondent No.7­ Glaxosmithkline Asia

Pvt. Ltd. and “Cervarix” by respondent No.8­ M.S.D.

Pharmaceuticals Private Limited, licenced in India

only in July, 2008 and September, 2008 respectively by

Drug Controller General of India.

4. In July, 2009 vaccine Gardasil in Khammam District

in Andhra Pradesh was administered. Few girl childs

died. Health activists wrote to the Ministry of Health

pointing out concern about irregularities and health

risk of the HPV vaccine. Women organisation sent

representations and also conducted a fact finding

enquiry. On 15th  April, 2010, Government of India

appointed a Committee to enquire into “alleged

irregularities in the conduct of studies using Human

Papilloma Virus(HPV) vaccine” by PATH in India. The

final report of Committee was submitted on 15.02.2011.

Enquiry committee noted several discrepancies. The

Parliamentary Standing Committee of Department of

Health Research, Ministry of Health and Family Welfare

5

while examining the demand for grants (2010­11) of

Department of Health Research took up the issue of

trial of HPV vaccine on children in Districts of

Khammam, Andhra Pradesh and Vadodara, Gujarat.

Parliamentary Standing Committee (hereinafter referred

to as “P.S.C.”) deliberated on the subject and held

various meetings. The Committee heard the UOI, ICMR,

Department of Drugs Controller General of India and

also took oral evidence. The Departmental Standing

Committee submitted its report (72nd  Report) to Rajya

Sabha on 30th August, 2013 which was also laid on the

table of Lok Sabha on 30th  August, 2013. The P.S.C.

found various shortcomings and lapses of the

Government Departments, ICMR as well as on part of the

respondent Nos.6 to 8. Various directions and

recommendations were issued by the Committee.  Again a

detailed report, namely, 81st  Report on “action taken

by the Government on the recommendations/ observations

contained in the 72nd  Report on the alleged

irregularities in the conduct of studies using Human

Papilloma Virus(HPV) vaccine by PATH” in India was

6

submitted  to Rajya Sabha on  23rd  December, 2014  and

also laid on the table of Lok Sabha on 23rd December,

2014. Both the reports have been brought on record.

Writ Petition (C) No. 921 of 2013

5. The Writ Petition as a Public Interest Litigation

has been filed by petitioners of which petitioner Nos.

1 and 2 are public trusts and petitioner Nos. 3 and 4

are registered societies.   The petitioners have

questioned the methods in which clinical trials for

medicines including vaccines are taking place in this

country to the disadvantage of vulnerable groups in

the society including the poor, tribal, women and

children.   The facts and pleadings in the writ

petition are on the line of facts and pleadings as

contained in Writ Petition (c) No. 558 of 2012, hence

are not repeated for brevity. Petitioners have prayed

for various reliefs including declaration that HPV

Vaccine Observational Study Demonstration Project was

a Phase IV clinical trial within the meaning of

various Rules in Drugs and Cosmetics Rules, 1945.

7

Petitioners have made several prayers including the

prayers for grant of compensation and direction for

investigation by Special Investigation Team of various

offences committed by respondent Nos. 2 to 8.

6. In both the writ petitions, most of materials

including fact finding enquiry conducted by the

petitioner No.1 in Writ Petition (C) No. 921 of

2013(PIL­W), newspapers reports, articles,

representations, correspondence have been referred to

and relied. Apart from other materials, reference and

reliance on 72nd  Report presented on 30th  August, 2013

and 81st  Report presented on 23rd  December, 2014 to

Rajya Sabha have also been placed.  

7. A two Judge Bench of this Court while hearing the

writ petitions has posed several questions and issued

various directions. In this context the Court passed

various directions on 12.08.2014, 13.01.2015 and

17.11.2015.

8

8. When the matter was heard on 18.11.2015 by two

Judge Bench this Court Stated : “Be it noted, a

substantial issue in law has arisen in course of

hearing of this case which pertains to exercise of

power of judicial review when a report of the

Parliamentary Standing Committee is filed before the

Court.”   After hearing the parties on 18.11.2015 the

two Judge Bench of this Court by a detailed order

dated 05.04.2017 has referred two questions as noted

above to be answered by a Constitution Bench.

SUBMISSIONS

9. We have heard Shri Colin Gonsalves, learned senior

advocate for petitioner in Writ Petition (C)

No.558/2012 and Shri Anand Grover, learned senior

advocate for petitioner in Writ Petition (C) No.921 of

2013. Shri Harish Salve and Shri Gourab Banerji,

learned senior advocates have appeared for respondent

No.8­MSD Pharmaceuticals Private Limited.  Shri Shyam

Divan, learned senior advocate has appeared for PATH

International. We have also heard Shri K.K.Venugopal,

learned Attorney General of India.

9

10. Shri Salve submits that Parliamentary Committee

Report can neither be looked into nor relied by this

Court. Shri Salve, however, submits that there are two

areas where Parliamentary Committee Report can be

relied  i.e. (a) legislative history of a statute and

(b) Minister's statement in the House.  The Members of

Parliament as well as those who appear before the

Parliamentary Committee are fully protected by the

legislative privileges of the members as well as of

the Houses. Article 105 sub­clause (2) of the

Constitution of India provides that no member of

Parliament shall be liable to any proceedings in any

court in respect of anything said or any vote given by

him in Parliament or any committee thereof. He further

submits that as per Article 105 sub­clause (3) the

powers, privileges and immunities of each House of

Parliament, and of the members and the committees of

each House, is same as of those of the House of

Commons as it exists on 26th  November, 1950. Article

105 sub­clause (4) extends the privileges as referred

to in clauses (1), (2) and (3) to all persons who have

10

the right to speak in, and otherwise to take part in

the proceedings of any House of Parliament or any

committee thereof. Evidence led in a Court cannot be

criticised. Same principles can apply with regard to

evidence taken by a Parliamentary Committee. A

committee of Parliament is part of Parliament.

11. The principal submission which has been canvassed

by Shri Salve is that there being legislative

privilege of all acts done in the Parliament including

report of Parliamentary Committee, the report cannot

be challenged in a Court of Law. He submits that

reliance of a Parliamentary Committee Report also

involves a challenge to the report by other parties.

No adjudication can be entertained by this Court with

regard to a Parliamentary Committee Report, hence

reliance placed by the petitioner on the Parliamentary

Committee Report is misplaced.

12. Relying on Article IX of Bill of Rights 1688, Shri

Salve submits that it confers on 'proceedings in

11

Parliament' protection from being 'impeached or

questioned' in any 'court or place out of Parliament'.

He submits that Indian Parliament is conferred the

same privileges which are enjoyed by the House of

Commons, hence Parliamentary Committee Report can

neither be relied nor questioned in any Court of Law.

Shri Salve referred to various English cases and

several judgments of this Court which shall be

referred to while considering the submissions in

detail.

13. Shri K.K. Venugopal, learned Attorney General also

contends that Parliamentary Reports cannot be relied

in Court. He submits that although there is no rigid

separation of powers in the three wings of States but

each wing of the States works in its own sphere.

Parliament is supreme in its proceedings which

proceedings cannot be questioned in any Court of Law.

The Parliamentary Reports cannot be made subject

matter of an issue in any proceeding of Court of Law

or even in a public interest litigation.   He submits

12

that all wings of the States have to work in their own

spheres so as not to entrench upon the sphere allotted

to other wing of State. He submitted that referring to

a report of Parliamentary Committee is a sensitive

issue of jurisdiction between Courts and Parliament

which should be avoided by this Court.   When the

courts cannot adjudicate on Parliamentary Committee

Report, what is the use of looking into it. Referring

to Section 57(4) of the Evidence Act, 1872 which

provides that the Court shall take judicial notice of

the proceedings of the Parliament and the Legislature

established under any law for the time being in force,

he submits that the substitutions were made in sub­

clause (4) of Section 57 by Adaptation Order of 1950

which were orders issued by the President and were not

amendments made by Parliament in Section 57.  He

submits that by Adaptation Order various words which

were earlier used in Evidence Act, 1872 were changed

after adoption of Constitution which cannot be treated

to be an act done by conscious deliberation of

Legislature. He submits that historical facts as well

13

as statement of Minister in Parliament can be used

with which there cannot be any quarrel. He, however,

submits that inferences in Parliamentary Committee

Report are not acceptable. He submits that when any

litigant wants to prove a fact, he has to search

material and produce evidence and he cannot be allowed

to take a shortcut by placing reliance on the

Parliamentary Committee Report. Parliamentary

Committee Report, is, in a manner, a speech.  Article

105 of the Constitution does not make any distinction

with reports which can be termed to as Social Welfare

Reports or other kinds of reports. He submits that

there is total bar in looking into the Reports of

Parliament based on separation of power and express

provisions of Article 105(2) and 105(4) of the

Constitution of India. The very fact that Speaker can

say ‘no’ with regard to any parliamentary material, it

has to be assumed that they operate as total bar on

use of parliamentary material as evidence. The

protection which is extended to a Member of Parliament

is also extended to the  Parliamentary proceedings and

14

Parliamentary reports.

14. Shri Colin Gonsalves, learned senior counsel

appearing for the petitioner submits that the

petitioner does not intend to challenge any part of

the Parliamentary Committee Report.  The Writ

Petitioner seeks nothing which may give rise to any

question of breach of Parliamentary privileges. The

writ petitioner is not asking this Court to take any

facts stated in Parliamentary Report to be conclusive

except which is permissible under Section 57 of

Evidence Act, 1872. As per the Evidence Act, 1872, the

Parliamentary  proceedings  are  public  documents  which

are admissible in evidence. The petitioner does not

ask for issuing any mandamus to enforce the

Parliamentary Committee Report. The cases cited by

Shri Harish Salve in support of his submissions relate

to breach of privileges of members of Parliament

whereas present is not a case involving any breach of

any privileges of a member of Parliament. Neither any

question is being raised in the Writ Petition

15

questioning any action or conduct of any member of

Parliament nor petitioner is asking to initiate any

proceeding against any member of Parliament. He

submits that facts noticed and stated in Parliamentary

report can very well be relied. The Parliament by its

procedure permits the Committee Report to be filed in

the Court, hence there is no prohibition in the Court

in looking into the Parliamentary Report.

15. It is further submitted that in the present case,

it is the Executive, which is trying to protect itself

taking shield of Parliamentary privileges whereas

Parliament does not take objection or offence of its

reports being relied and used. When the reports are

published by Parliament the process is over and

thereafter there is no prohibition on reports being

filed as evidence and used by all concern. This court

should follow the principles of the comity of the

institution instead of relying on principles of

separation of power and conflict of the institution.

Under the Right to Information Act, the Parliamentary

16

Reports can be sought for and used by all concern. The

present is an age of transparency, in which period the

respondent cannot be heard in saying that benefits of

report should be blacked out from the courts.

16. The 72nd  and 81st  Parliamentary Committee Reports

play a very important role since they unearth the

events of the illegal vaccination done on poor and

malnourished young tribal girls and further it has

commented adversely on the role of Government agencies

such as ICMR and DGCI and the State of Andhra Pradesh

and Gujarat. The Government officials had appeared

before the Parliamentary Committee and admitted

several wrong doings.

17. Shri Anand Grover,  learned senior advocate

appearing for petitioners in Writ Petition (C) No.921

of 2013 has adopted most of the submissions of Shri

Colin Gonsalves but has raised certain additional

submissions. Shri Grover submits that truth and

contents of documents are two entirely different

17

things. When document is admitted what is proved is

document and contents and not the truth. He submits

that there is no question of challenging the findings

of the Parliamentary Committee’s Report nor the

reports are being questioned in this Court. Shri

Grover has also referred to several English cases as

well as judgments of Australian High Court, U.S.

Supreme Court and of this Court. Referring to Section

16(3) of the Australian Parliamentary Privileges Act

1987, Shri Grover submits that law as applicable in

Australia by virtue of Section 16(3) is not applicable

in India nor has been accepted as law applicable in

United Kingdom. He submits that Parliamentary

Committee Report which is a measure of social

protection should be looked into by the Court while

rendering justice to the common man especially in

Public Interest Litigation.

18. Shri Grover further submits that Parliamentary

Committee Reports can be relied only when they are

published and becomes a public document. He submits

18

that statements can be looked into from the

Parliamentary Committee Report but not the inferences

and findings. The Parliamentary Committee Reports have

been obtained from the House and no kind of privilege

is involved.

19. Shri Shyam Divan, learned senior advocate

appearing for PATH submits that PATH is a non­profit

body operating in area of health. Referring to Section

57 of the Evidence Act, Shri Divan Submits that sub­

section (4) of Section 57 uses the phrase 'course of

proceeding'. He submits that the expression ‘course of

proceeding’ does not comprehend the Parliamentary

reports. He submits that when in this Court anyone

traverses or controverts a Parliamentary Committee

Report, it is not in the interest of the comity of the

institutions. He submits that references to

Parliamentary proceedings are possible only in two

areas i.e. in interpreting a Legislation and Statement

of a Minister. He submits that entire report is to be

examined as a whole.  The answering respondent in Writ

19

Petition (C) No.921 of 2013 in its counter affidavit

has challenged the veracity of the findings of the

Parliamentary Standing Committee Report. The

Parliamentary Committee is the functional organ of the

Parliament which also enjoys the privileges and

immunity provided under Article 105(2) of the

Constitution of India. The reports of Parliamentary

Committee are not amenable to judicial review.

Parliamentary Standing Committee Reports are not to be

relied in court proceedings in as much as traversing

or contesting the content of report, it may cause

breach of Parliamentary privileges under Article 105

and Article 122 of the Constitution of India.

Challenge to such reports may invite contempt

proceedings by Parliament for breach of privileges.

The Parliamentary reports cannot be basis for any

action in law both criminal and civil in any court

including Writ Petition or Public Interest Litigation.

20. Shri Gourab Banerji, learned senior advocate,

replying the submissions of Shri Colin Gonsalves and

20

Shri Anand Grover, submits that recommendations and

conclusions of Parliamentary Committee Reports cannot

be relied. A moment there is a fact finding in report,

it cannot be looked into.

21. We have considered above submissions and perused

the record. For answering the two questions referred

to this Constitution Bench, as noted above, we need to

consider the following issues:

a. Whether by accepting on record a

Parliamentary Standing Committee's Report by

this Court in a case under Article 32 or 136,

any privilege of Parliament is breached.  

b. In the event, a Parliamentary Standing

Committee's Report can be accepted as an

evidence,  what  are the  restrictions  in  its

reference  and  use  as per  the parliamentary

privileges enjoyed by the Legislature of this

country.  

c. Whether in traversing and questioning the

reports, the private respondents may invite a

contempt of House.  

22. The above issues being inter­connected, we proceed

21

to examine all the issues together. While considering

the above issues, we have divided our discussion in

different sub­heads/ topics for overall understanding

of parliamentary privileges enjoyed by the Indian

Legislature.  

A. PARLIAMENTARY PRIVILEGES

23. The origin and evolution of parliamentary

privilege is traceable from High Court of British

Parliament.   In the early period of British History,

the High Court of Parliament assisted the Crown in his

judicial functions.   The High Court of Parliament

started sitting in two parts i.e.  House of Lords and

House of Commons.  Gradually, both the Houses claimed

various privileges which were recognised.  Some of the

privileges were claimed by both the Houses as rights

from ancient times and some of the privileges were

statutorily recognised. A significant parliamentary

privilege is recognised and declared by Article IX.

Bill of Rights, 1688 which conferred on 'proceedings

in Parliament protection from being 'impeached' or

22

'questioned' in any court or place out of Parliament'.

By the end of 19th  Century most of the parliamentary

privileges of House of Commons were firmly established

and recognised by the Courts also.  

24. Erskine May  in his treaties  'Parliamentary

Practice', Twenty­fourth Edition' has elaborately

dealt with the privileges of Parliament and all other

related aspects. In Chapter XII of the Book, Erskine

May states about what constitutes the privilege:

“Parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament; and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by stature.”  

25. The term 'parliamentary privilege' refers to the

immunity and powers possessed by each of the Houses of

the Parliament and by the Members of the Parliament,

which allow them to carry out their parliamentary

functions effectively. Enumerating few rights and

23

immunities Erskine May states:

"Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each  House  and  exist  because  the  House cannot perform its functions without unimpeded use of the services of its Members. Other rights and immunities, such as the power to punish for contempt and the power to regulate its own constitution, belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members. The Speaker has ruled that parliamentary privilege is absolute.  

When any of these rights and immunities is disregarded or attacked, the offence is called a breach of privilege, and is punishable under the law of Parliament. Each House also claims the right to punish contempts, that is, actions which, while not breaches of any specific privilege, obstruct or impede it in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its Members or its officers. The power to punish for contempt has been judicially considered to be inherent in each House of Parliament not as a necessary incident of the authority and functions of a legislature (as might be

24

argued in respect of certain privileges) but by virtue of their descent from the undivided High Court of Parliament and in right of the lex et consuetudo parliamenti.”

26. The Halsbury's Laws of England, Fifth Edition Vol.

78, while tracing the 'origin and scope of

privileges', states following:

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

27. The privileges of the Indian Legislatures have

also gradually developed alongwith the progress in the

constitutional development of the country.   The

Government of India Act, 1919 and 1935 constitute

25

successive milestone in the development of the

legislative bodies in India.  The Government of India

Act, 1935 has been referred to as Constitution Act by

Privy Council.

28. Dr. B. R. Ambedkar, the Chairman of the Drafting

Committee while debating on draft Article 85(Article

105 of the Constitution of India) and draft Article

169(Article 194 of the Constitution of India) has

referred to Erskine May's 'Parliamentary Practice' as

a source book of knowledge with regard to immunities,

privileges of Parliament. The Constitution of India by

Article 105 and Article 194 gives constitutional

recognition of parliamentary privileges. We now

proceed to examine the constitutional provisions

pertaining to parliamentary privileges.

29. Article 105 of the Constitution of India deals

with 'powers, privileges and immunities of Parliament

and its Members whereas Article 194 deals with the

powers, privileges and immunities of State

Legislatures and   their Members. Both the provisions

26

are  identical. To understand the constitutional

scheme,  it is sufficient to refer to Article 105 of

the Constitution of India.   Article 105 of

Constitution of India as it exists, provides as

follows:  

“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 any thing said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

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

27

(4) The provisions  of  clauses  (1),  (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee  thereof  as  they  apply in relation to members of Parliament.”

30. Two amendments were made in Article 105 sub­

clause (3) i.e. by Constitution (Forty Second and

Forty Fourth Amendment). Article 105 sub­clause (3) in

its original form was as follows:  

“Article 105(3). In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined "shall be those of the House of Commons of the Parliament of the United  Kingdom, and of  its  members  and committees, at the commencement of this Constitution."

31. Sub­clause (1) of Article 105 of the Constitution

of India gives constitutional recognition to 'freedom

of speech' in Parliament. Sub­clause (2) of Article

105 enumerates the privileges and immunities of

Members of Parliament.   There is absolute protection

28

to a Member of Parliament against any proceeding in

any court, in respect of anything said or vote given

by him in Parliament or any committee thereof. In the

present case, we are called upon to examine the

parliamentary privileges with regard to Parliamentary

Standing  Committee's  Report.  According  to  sub­clause

(2) of Article 105 of Constitution of India no Member

of Parliament can be held liable for anything said by

him in Parliament or in any committee. The reports

submitted by Members of Parliament is also fully

covered by protection extended under sub­clause (2) of

Article 105 of the Constitution of India.  Present is

not a case of any proceeding against any Member of the

Parliament for anything which has been said in the

Parliament Committee's Report.

32. We now proceed to sub­clause (3) of Article 105 of

the Constitution of India. Sub­clause (3) of Article

105 of the Constitution of India begins with the words

'in other respects'. The words 'in other respects'

clearly refer to powers, privileges and immunities

29

which are not mentioned and referred to in sub­clauses

(1) and (2) of Article 105. Sub­clause (3) of Article

105 makes applicable the same powers, privileges and

immunities for Indian Parliament which were enjoyed by

the House of Commons at the time of enforcement of the

Constitution of India.  

33. The Constitution Bench in P. V. Narsimha Rao vs.

State (CBI/SPE), (1998) 4 SCC 626  had elaborately

considered Article 105 of the Constitution of India.

In paragraph 28 and paragraph 29 of the judgment

following has been stated:  

“28.  Clause (2) confers immunity in relation to proceedings in courts. It can be divided into two parts. In the first part immunity from liability under any proceedings in any court is conferred on a Member of Parliament in respect of anything said or any vote given by him in Parliament or any committee thereof. In the second part such immunity is conferred on a person in respect of publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. This immunity that has been conferred under clause (2) in respect of anything said or any vote given by a Member in Parliament or any committee thereof and in respect of publication by or under the authority of either House of Parliament of any

30

report, paper, votes or proceedings, ensures that the freedom of speech that is  granted  under  clause (1) of  Article 105 is totally absolute and unfettered. (See: Legislative Privileges case  (1997) 66 DLT 618 (Del) pp. 441, 442.)

29. Having secured the freedom of speech in Parliament to the Members under clauses (1) and (2), the Constitution, in clause (3) of Article 105, deals with powers, privileges and immunities of the House  of  Parliament and of  the  Members and the committees thereof in other respects. The said clause is in two parts. The first part empowers Parliament to define, by law, the powers, privileges and immunities of each House of Parliament and of the Members and the committees of each House. In the second part, which was intended to be transitional in nature, it was provided that until they are so defined by law the said powers, privileges and immunities shall be those of the House of Commons in the United Kingdom and of its Members and committees at the commencement of the Constitution. This part of the provision was on the same lines as the provisions contained in Section 49 of the Australian Constitution and Section 18 of the Canadian Constitution. Clause (3), as substituted by the Forty­fourth Amendment of  the  Constitution,  does  not  make  any change in the content and it only seeks to omit future reference to the House of Commons of Parliament in the United Kingdom while preserving the position as it stood on the date of the coming into force of the said amendment.”

31

B. PRIVILEGES OF HOUSE OF COMMONS

34. What are the privileges of the House of Commons

which are also enjoyed by the Indian Parliament by

virtue of sub­clause (3) of Article 105 of the

Constitution of India need to be examined for

answering the issues which have arisen in the present

case.

35. While dealing with the privileges of Parliament

Erskine May in his treatise 'Parliamentary Practice'

enumerates the following privileges:

1. Freedom of Speech 2. Freedom from Arrest 3. Freedom of Access 4. Favourable Construction 5. Privileges with respect to membership of the  

House 6. Power of commitment for breach of privilege  

or contempt.

36. Halsbury's Laws of England in Fifth Edition Vol.

78, while dealing with the privileges etc. claimed by

both the Houses 'enumerates privileges':

1. Exclusive cognisance of proceedings 2. Freedom of Speech and proceedings in  

32

Parliament 3. Contempts 4. Freedom from Arrest 5. Protection of witnesses and others before   

Parliament 6. Power to exclude the public.

37. The main privileges which are claimed by the House

of Commons were noticed by the Constitution Bench of

this Court in Special Reference No. 1 of 1964 (UP

Assembly Case) AIR 1965 SC 745 in para 73 and 74 which

are quoted as below:

"73.  Amongst the other privileges are: the right to exclude strangers, the right to control publication of debates and proceedings, the right to exclusive cognizance of proceedings in Parliament, the right of each House to be the sole judge of the lawfulness of its own proceedings, and the right implied to punish its own members for their conduct in Parliament Ibid, p. 52­53.

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

38. M. N. Kaul and S. L. Shakdher in 'Practice &

Procedure of Parliament', Seventh Edition published by

Lok Sabha Secretariat have enumerated 'Main privileges

33

of Parliament' to the following effect:

“Main Privileges of Parliament  

Some of the privileges of Parliament and of its members and committees are specified in the Constitution, certain statutes and the Rules of Procedure of the House, while others continue to be based on precedents of the British House of Commons and on conventions which have grown in this country.

Some of the more important of these privileges are:

(i) Privileges specified in the Constitution:

Freedom of speech in Parliament Art. 105(1).

Immunity to a member from any proceedings in any court in respect of anything said or any vote given by him in Parliament  or  any committee thereof Art. 105(2).

Immunity to a person from proceedings in any court in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings Ibid.

Prohibition on the courts to inquire into proceedings of Parliament Art. 122.

Immunity to a person from any proceedings,  civil  or  criminal,  in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of

34

Parliament unless the publication is proved to have been made with malice. This immunity is also available in relation to reports or matters broadcast by means of wireless telegraphy Art. 361 A.

(ii) Privileges specified in Statutes:

Freedom from arrest of members in civil cases during the continuance of the session of the House and forty days before its  commencement  and  forty  days after its conclusion CPS s. 135 A­For further details, see sub­head 'Freedom from Arrest in Civil Cases' infra.

(iii) Privileges specified in the Rules of Procedure and Conduct of Business of the House:

Right of the House to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member Rules 229 and 230.  

Exemption of a member from service of legal process and arrest within the precincts of the House Rules 232 and 233.  

Prohibition of disclosure of the proceedings or decisions of a secret sitting of the House Rule 252.

(iv) Privileges based upon Precedents: Members or officers of the House cannot be compelled to give evidence or to produce documents in courts of law, relating to the proceedings of the House without the permission  of  the  House 1R (CPR – 1LS).

35

Members or officers of the House cannot be compelled to attend as witness before the other House or a committee thereof or before a House of State Legislature or a committee thereof without the permission of the House and without the consent of the member whose attendance is required 6R (CPR­2LS).

In addition to the above­mentioned privileges and immunities, each House also enjoys certain consequential powers necessary for the protection of its privileges and immunities. These powers are:

to commit persons, whether they are members or not, for breach of privilege or contempt of the House P.D., 1961, Vol. V­2, Pt. III, pp. 51­52 (Rajasthan Vidhan Sabha Case, 10 April 1954) 1974, Vol. XIX­2, pp. 42­43 and 1975, Vol. XX­ 1, pp. 78 (shouting of slogans and carrying of arms by 'visitors to Lok Sabha); Homi D. Mistry v. Nafisul Hassan – the Blitz Case, I.L.R. 1957, Bombay 218;  the Searchlight  Case,  A.I.R.  1959 S.C. 395; C. Subramaniam's Case, A.I.R. 1968, Madras 10.

to compel the attendance of witnesses and to send for persons, papers and records Rules 269 and 270, Harendra Nath Barua v. Dev Kant Barua, A.I.R. 1958, Assam 160.  

to regulate its procedure and the conduct of its business Art. 118(1)

to prohibit the publication of its debates and proceedings, The Searchlight

36

Case and to exclude strangers Rule 387.”

39. The privileges of Indian Parliament, which have

been enumerated above, are the privileges which were

enjoyed by the British House of Commons.   From the

parliamentary privileges as enumerated above, it is

clear that there is a complete immunity to the Members

of Parliament from any proceeding for anything said in

any committee of the Parliament. Present is not a case

where any proceedings are contemplated against any

Member of Parliament for anything which has been said

in a report of a Committee, involving a breach of any

privilege under sub­clause (2) of Article 105 of the

Constitution of India.

40. The question to be considered, is as to whether,

there is any breach of privileges of Parliament in

accepting, referring and relying on a Parliamentary

Committee Report by this Court.

C. THE ROLE OF PARLIAMENTARY COMMITTEES

41. The Parliament is legislative wing of the Union.

37

The Council of Ministers headed by the Prime Minister

is collectively responsible to the House of the

People.    The role of Parliament is thus not confined

to mere transacting legislative business. In the

representative parliamentary democracy, the role of

Parliament has immensely increased and is pivotal for

the governance of the country.

42. F. W. Maitland  in the  'Constitutional History of

England'  while writing on 'The Work of Parliament'

stated the following:  

“....But we ought to notice that the Houses of parliament do a great deal of important work without passing statutes or hearing causes. In the first place they exercise a constant supervision of all governmental affairs.   The ministers of the king are expected to be in parliament and to answer questions, and the House may be asked to condemn their conduct..... ”

43. Dr. Subhash C. Kashyap  in  'Parliamentary

Procedure,'  Second Edition  while discussing the

functions of the Parliament stated:  

“Over the years, the functions of Parliament have no longer remained restricted merely to legislating. Parliament has, in fact emerged

38

as   a multi­functional institution encompassing in its ambit various roles viz. developmental, financial and administrative surveillance, grievance ventilation and redressal, national integrational, conflict resolution, leadership recruitment and training, educational and so on.   The multifarious functions of Parliament make it the cornerstone on which the edifice of Indian polity stands and evokes admiration from many a quarter. ”

44. The business of Parliament is transacted in

accordance with the rules of procedure as framed under

Article 118 of the Constitution of India. Both the

Houses of the Parliament have made rules for

regulating its procedure and conduct of its business.

The Rajya Sabha has framed rules, namely, 'The Rules

of Procedure and Conduct of Business in the Council of

States(Rajya Sabha)', which were brought into force

w.e.f. 01.07.1964. The Rules of Procedure and Conduct

of Business in Lok Sabha were framed and published in

the Gazette of India Extra­ordinary on 17.05.1952.

45. Various committees of both Rajya Sabha and Lok

Sabha are entrusted with enormous duties and

responsibilities in reference to the functions of the

39

Parliament.  Maitland  in 'Constitutional History of

England' while referring to the committees of the

Houses of British Parliament noticed the functions of

the committees in the following words:  

“.....Then again by means of committees the Houses now exercise what we may call an inquisitorial power.   If anything is going wrong  in  public affairs a  committee may be appointed to investigate the matter; witnesses can be summoned to give evidence on oath, and if they will not testify they can be committed for contempt. All manner of subjects concerning the public have of late been investigated by parliamentary commissions; thus information is obtained which may be used as a basis for legislation or for the recommendation of administrative reforms.”

46. Chapter IX of the Rajya Sabha Rules dealing with

the legislation provides for Select Committees on

Bills, procedure of the presentation after report of

the Select / Joint Committee. The Rules provide for

various committees including Committee on Subordinate

Legislation, Committee on Government Assurances and

other committees. Chapter XXII deals with

'Departmental Related Parliamentary Standing

Committees'. Rule 268 which provides for 'Departmental

Select Committees' is as follows:

40

"268. Department­related Standing

Committees

(1) There shall be Parliamentary Standing Committees of the Houses (to be called the Standing Committees) related to Ministries/Departments.

(2) Each of the Standing Committees shall be related to the Ministries/Departments as specified in the Third Schedule:

Provided that the Chairman and the Speaker, Lok Sabha (hereinafter referred to as the Speaker), may alter the said Schedule from time to time in consultation with each other.”

47. Rule 270 deals with functions of the Standing

Committees which are to the following effect:  

"270. Functions

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

(a) to consider the Demands for Grants of  the  related Ministries/Department and report thereon. The report shall not suggest anything of the nature of cut motions;

(b) to examine Bills, pertaining to the related  Ministries/Departments, referred to the  Committee by the Chairman or the  Speaker, as the case

41

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.”  

48. Rule 277 provides that the Report of the Standing

Committee shall have persuasive value. Schedule III of

the Rules deals with the 'Allocation of various

Ministries/Departments related to Parliamentary

Standing Committee'.   At Item No. 7 is 'Committee on

Health and Family Welfare' which relates to Department

of Health and Family Welfare.

49. Present is a case where Parliamentary Standing

Committee which has submitted the report is the

Parliamentary Standing Committee on Health and Family

Welfare.  M. N. Kaul and S. L. Shakdher  in their

42

treatise on  'Practice and Procedure of Parliament'

published by Lok Sabha Secretariat, dealing with the

business of Committees stated the following:

"Parliament transacts a great deal of its business through Committees. These Committees are appointed to deal with specific items of business requiring expert or detailed consideration.   The system of Parliamentary Committees is particularly useful in dealing with matters which, on account of their special or technical nature, are better considered in detail by a small number of members rather than by the House itself. Moreover, the system saves the time of the House for the discussion of important matters and prevents Parliament from getting lost in details and thereby losing hold on matters of policy and broad principles.”

50. The reports which are submitted by the

Departmental Parliamentary Standing Committees are

reports of matters entrusted to it by Parliament, by

the Speaker. Parliament to which Council of Ministers

are responsible, supervises the various works done by

different Departments of the Government. Apart from

the supervision, the committees also make

recommendations and issue directions.   Directions and

recommendations are to be implemented by different

Government Departments and action taken reports are

43

submitted before the Parliament to be considered by

Departmental Standing Committees. The functions of the

committees thus, play an important role in functioning

of the entire Government which is directly related to

the welfare of the people of the country.  

D. PUBLICATION OF PARLIAMENTARY REPORTS

51. The Reports of the Parliamentary Standing

Committees and other decisions and resolutions of the

Parliament are published under the authority of House.

Publication of proceedings of Parliament serves public

purpose.   Members of British Parliament in earlier

years had treated publication of its proceedings as

breach of privilege. However, subsequently, the

Members of British Parliament have permitted the

publication of its proceedings in Hansard.   As early

as, in the year 1868  Cock Burn, CJ. in Wason v.

Walter, 1869 QB Vol. 4 at p. 73  held that it is of

paramount public and national importance that the

proceedings of the House of Parliament shall be

communicated to the people.  Cock Burn, CJ, at page 89

44

held the following:  

''….It seems to us impossible to doubt that it is of paramount public and national importance that the proceedings of the houses of parliament  shall  be  communicated  to  the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends. Where would be our confidence in the government of the country or in the legislature by which our laws are framed, and to whose charge the great interests of the country are committed, ­where would be our attachment to the constitution under which we live,­if the proceedings of the great council of the realm were shrouded in secrecy and concealed from the knowledge of the nation? How could the communications between the representatives of the people and their constituents, which are so essential to the working of the representative system, be usefully carried on, if the constituencies were kept in ignorance of what their representatives are doing? What would become of the right of petitioning on all measures pending in parliament, the undoubted right of the subject, if the people are to be kept in ignorance of what is passing in either house? Can any man bring himself to doubt that the publicity given in modern times to what passes in parliament is essential to the maintenance of the relations subsisting between the government, the legislature, and the country at large?....”

52. Further, it was held 'no' subject of parliamentary

discussion which more requires to be made known than

45

an inquiry relating to it. Cock Burn CJ. further held

that although each House by standing orders prohibits

the publication of its debate but each House not only

permits, but also sanctions and encourages the

publication:

“....The fact, no doubt, is, that each house of parliament does, by its standing orders, prohibit the publication of its debates. But, practically, each house not only permits, but also sanctions and encourages, the publication of its proceedings, and actually gives every facility to those who report them. Individual members correct their speeches for publication in Hansard or the public journals, and in every debate reports of former speeches contained therein are constantly referred to. Collectively, as well as individually, the members of both houses would deplore as a national misfortune the withholding their debates from the country at large. Practically speaking, therefore, it is idle to say that the publication of  parliamentary proceedings is prohibited by parliament....”

53. Under the Rule 379 of Lok Sabha, Secretary General

is authorised to prepare and publish the full report

of the proceedings of the House under the direction of

the Speaker. Parliament has also passed a legislation,

namely, the 'Parliamentary Proceedings (Protection of

Publication) Act, 1977' which provides that

46

publication of reports of parliamentary proceedings is

privileged.  

Section 3 of the Act is as follows: ­

"Section 3. Publication of reports of parliamentary proceedings privileged:

(1) Save as otherwise provided in sub­section (2), no person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament unless the publication is proved to have been made with malice.

(2) Nothing in sub­section (1) shall be construed as protecting the publication of any matter, the publication of which is not for the public good. ”

54. By Constitution (Forty Fourth Amendment) Act,

1978, Article 361A was inserted in the Constitution

providing for 'protection of publication of

proceedings by Parliament and State Legislatures'.

Article 361A is as follows:  

“Art.  361A . Protection of publication of proceedings of Parliament and State Legislatures.­

(1) No person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any

47

proceedings of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature of a State, unless  the  publication  is  proved  to have been made with malice:

Provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State.

(2) Clause (1) shall apply in relation to reports or matters broadcast, by means of wireless telegraphy as part of any programme or service provided by me ans of a broadcasting station as it applies in relation to reports or matters published in a newspaper.

Explanation.­­In this article, "newspaper" includes a news agency report containing material for publication in a newspaper.”

55. The rules framed under Article 118 of the

Constitution of India thus clearly permit the

publication of parliamentary proceedings. Apart

from publication of the proceedings of the

Parliament, including the reports of the

committees, now, they are also permitted to be

broadcast on electronic media. The publication of

the reports not being only permitted, but also are

48

being encouraged by the Parliament. The general

public are keenly interested in knowing about the

parliamentary proceedings including parliamentary

reports which are steps towards the governance of

the country.

56. At this juncture, it is relevant to note that

as per rules framed under Article 118 of the

Constitution of India, both for Lok Sabha and Rajya

Sabha, the Parliamentary Standing Committees are to

follow the procedure after constitution of the

committee and till the reports are submitted to the

Speaker. During the intervening period, when  the

preparation of reports is in process and it is not

yet submitted to the Speaker and published, there

is no right to know the outcome of the reports.

Learned counsel for both the petitioners have

submitted that the right to know about the reports

only arises when they have been published for use

of the public in general. Thus, no exception can be

taken in the petitioners obtaining 72nd  and 81st

49

Reports of Parliamentary Standing Committee.

E. RULES AND PROCEDURES REGARDING PERMISSION FOR GIVING EVIDENCE IN COURTS REGARDING PROCEEDINGS IN PARLIAMENT

57. The papers and   proceedings of Parliament have

been permitted to be given in evidence in Courts of

law by the Parliament. In this context, reference is

made to Practice and Procedure of Parliament by  M.N.

Kaul and S.L. Shakdhar, Seventh Edition, published by

Lok Sabha Secretariat, where on this subject following

has been stated:

“  Evidence in Courts Regarding Proceedings in Parliament

Leave of the House is necessary for giving evidence in a court of law in respect of the proceedings in that House or committees thereof or for production of any document connected with the proceedings of that House of Committees thereof, or in the custody of the officers of that House. According to the First Report of the Committee of Privileges of the Second Lok Sabha, “no member or officer of the House should give evidence in a Court of law in respect of any proceedings of the House or any Committees of the House or any other document connected with the proceedings of

50

the House or in the custody of the Secretary­ General without the leave of the House being first obtained”.

When the House is not in session, the Speaker may, in emergent cases, allow the production of relevant documents in courts of law in order to prevent delays in the administration of justice and inform the House accordingly of the fact when it reassembles or through the Bulletin. However, in case the matter involves any question of privilege, especially the privilege of a witness, or in case the production of the document appears to him to be a subject for the discretion of the House itself, the Speaker may decline to grant the required permission without leave of the House.

Whenever any document relating to the proceedings of the House or any committee thereof is required to be produced in a court of law, the Court or the parties to the legal proceedings have to request the House stating precisely the documents required, the purpose for which they are required and the date by which they are required. It has also to be specifically stated in each case whether only a certified copy of the document should be sent or an officer of the House should produce it before the court.”

58. After the enforcement of Right of Information Act,

2005, on the basis of a report submitted by the

Committee of Privileges, the procedure for making

available documents relating to the proceedings of the

House has been modified. Kaul and Shakdher had noticed

51

the detail in the above regard in Chapter XI dealing

with powers, privileges and immunities of Houses,

their Committees and Members to the  following effect:

“The Committee of Privileges, Fourteenth Lok Sabha, felt that it was about time that the procedure for dealing with the requests for documents relating to proceedings of the House, its Committees etc., received from Courts of Law and investigating agencies were given a fresh look, particularly in the light of the provisions of the Right to Information Act,2005. The Committee, with the permission of the Speaker, took up the examination of the matter. The Twelfth Report in the matter was presented to the Speaker Lok Sabha on 28 April 2008 and laid on the Table of the House on 30 April 2008. The Report was adopted by the House  on 23 October 2008.

The Committee in their Report recommended the following procedure:

(I)  Procedure for making requests for documents  relating to the proceedings of the House or  of any Committee of the House:

A. If request for documents relating to   proceedings of the House or of any   Committee of the House is made by a Court  or by the parties to a legal proceedings  before a court, the court or the parties  to the proceedings as the case may be,   shall specify the documents required, the  purpose for which they are required and   the date by which they are required. It   should also be specifically stated in each case whether only certified copies or   photocopies of the documents should be   sent or an officer of the House should   produce it before the court.

52

*****

(II) Procedure for dealing with requests for   documents relating to proceedings of the   House or any Committee of the House.

*****

III. Procedure for dealing with requests   from  courts or investigating   agencies for  documents other than those  relating to the  proceedings of the   House or any Committee of  the House,   which are in the custody of the   Secretary­General.

 *****

IV. The question whether a document relates  to the  proceedings of the House or any Committee of  the House shall be decided  by the Speaker and  his decision shall be final.

V.  Documents relating to the proceedings of  the  House or any Committee of the House  which are  public documents should be  taken judicial  notice of and requests for certified copies  thereof may not be ordinarily made unless  there are   sufficient reasons for making such   requests.

VI. Procedure after the Report of the   Committee  of Privileges has been   presented or laid on the Table of the   House.”

59. Learned counsel for the respondents in his

compilation has given Third Edition (2017) of Raj

53

Sabha at Work, wherein at page 257 the subject

“Production of documents before a Court” is mentioned.

From page 257 to page 259 various instances have also

been mentioned whereas on a request received from

Court for production of documents, due permission was

granted and documents were made available to the

Courts. At page 259 reference of the request received

from Sessions Judge, Cuddalore, for certified copy of

Attendance Register of Rajya Sabha was made. The

extracts from relevant file has been quoted which is

to the following effect:

“A request was received from the Sessions Judge, Cuddalore, for certified extracts from the Attendance Register from 1 March 1963 to 15 March 1963, in the Rajya Sabha, showing the presence and attendance of Shri R. Gopalakrishnan, member of the Rajya Sabha. As the House was not in session when the said request was received, the Chairman granted permission to send the relevant extracts from the Attendance Register duly certified to the Sessions Judge. The extracts were sent on 30 January 1964, and the Deputy Chairman informed the House accordingly.

As regards the production of printed/published debates of the House or reference to them in a court, a view was held that no leave of the House was

54

required for the purpose. Under Section 78 of the Evidence Act, 1872, the proceedings of Legislatures could be proved by copies thereof, printed by order of the Government. The question of obtaining the leave of the House would arise only if a court required the assistance of any of the members or officers in connection with the proceedings  of  the House or  production of documents in the custody of the Secretary­General of the House.”

60. From the above discussion it is clear that as a

matter of fact the Parliamentary materials including

reports and other documents have been sent from time

to time by the permission of the Parliament itself to

be given as evidence in Courts of law.

F. THE APPLICABILITY OF THE INDIAN EVIDENCE ACT, 1872, IN THE CONTEXT OF PARLIAMENTARY PROCEEDINGS.  

61. Learned counsel for the petitioner has placed

reliance on Section 57 of the Evidence Act. Section 57

provides for “Facts of which Court must take judicial

notice”. Section 57 sub­section (4) is relevant which

is quoted as below:

“Section 57. Facts of which Court must take judicial notice. –– The Court shall

55

take judicial notice of the following facts: ––   (1) All laws in force in the territory of India;

xxx xxx xxx xxx (4)  The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States;

xxx xxx xxx xxx

(13) xxx xxx xxx xxx

In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.   

If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.”

62. A plain reading of Section 57 sub­section (4)

makes it clear that the course of proceeding of

Parliament and the Legislature, established under any

law are facts of which judicial notice shall be taken

by the Court.

56

63. Shri Shyam Divan in reference to Section 57

submits that Parliamentary Standing Committee Reports

are not covered by expression “course of proceeding of

Parliament”, hence no benefit can be taken by the

petitioner of this provision. The expression “course

of proceeding of Parliament” is an expression of vide

import. The Parliamentary Committee is defined in Rule

2 of Rules of Lok Sabha in following manner:

"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.”

64. Article 118 sub­clause (1) read with Rules framed

for conduct of business in Lok Sabha and Rajya Sabha

makes it clear that the proceedings of Parliamentary

Standing Committee including its Report are

proceedings which are covered by the expression

“course of proceeding of Parliament”. Thus, we do not

find any substance in the above submission of Shri

Shyam Divan.

57

65. Now submission of learned Attorney General in

reference to Section 57(4) needs to be considered.

66. The President exercises power under Article 372

sub­clause (2) by way of repeal or amendment of any

law in force in the territory of India. The Adaptation

Order issued by the President thus constitutionally

has same effect as the repeal or amendment of any law

in force in the territory of India. Under sub­clause

(3)(b) of Article 372 the competent   Legislature has

also power of repealing or amending any law adapted or

modified by the President under sub­clause (2) of

Article 372.

67. The Adaptation Order issued by the President under

sub­clause (2) of Article 372 thus has force of law

and competent Legislature having not made any

amendment in the Adaptation Order of 1950, even after

77 years of the enforcement of the Constitution

indicates that law as adapted by Presidential Order,

1950 is continued in full force. The effect of Section

59

privilege committee that for those documents which are

public documents within the meaning of Indian Evidence

Act, there is no requirement of any permission of

Speaker of Lok Sabha for producing such documents as

evidence in Court. We may, however, hasten to add that

mere fact that a document is admissible in evidence

whether a public or private document does  not lead to

draw any presumption that the contents of the

documents also are true and correct.

70. In this context, reference is made to a judgment

of the Privy Council reported in  Right Honourable

Gerald Lord Strickland vs. Carmelo Mifsud Bonnici,AIR

1935 PC 34. In the above case reports of the debates

in the Legislative Assembly containing speeches of the

appellant and the publication were produced. The Privy

Council in the above reference has expressed opinion

that debates can only be evidence of what was stated

by the speakers in the Legislative Assembly, and are

not evidence of “any facts contained in the speeches”.

61

been noticed. The argument was opposed by the other

side. The Bombay High Court came to the conclusion

that report of JPC is a public document under Section

74 of the Evidence Act and the report was admissible

as evidence.  Justice S. H. Kapadia (as he then was)

held that  the correctness of the findings in the JPC

will ultimately depend on the entire view of the

matter.  Following was observed in paragraph 5 of the

judgment:

“5....The Report of JPC has recorded that there was an arrangement between the brokers and the Banks, including Standard Chartered Bank, under which the Banks were assured of a return of 15%. It was something like a minimum guaranteed return offered by the brokers to the Banks. As stated above, the Report has given findings on certain banking  and  market practices which led to the financial irregularities in security transactions. In that context, the JPC examined various Officers of the Banks and the brokers. After recording their evidence, as stated above, JPC came to the conclusion that there were certain practices followed by the Banks and the brokers like Routing facilities, margin trading and 15% arrangement. To this extent, the findings of JPC can be read as evidence in the present matter. However, the question as to whether the suit transaction was a part of 15%

64

Parliamentary Practice and I have noticed that practically 8 or 9 columns of the index are devoted to the privileges and immunities of Parliament. So that if you were to enact a complete code of the privileges and immunities of Parliament based upon what May has to say on this subject, I have not the least doubt in my mind that we will have to add not less than twenty or twenty­five pages relating to immunities and privileges of Parliament. I do not know whether the Members of this House would like to have such a large categorical statement of privileges and immunities of Parliament extending over twenty or twenty­five pages. That I think is one reason why we did not adopt that course.”     

75. The draft article was finally approved maintaining

the reference to House of Commons in regard to other

privileges.  Thus, the privileges which our Parliament

and State Legislatures enjoy are privileges enjoyed by

House of Commons of the United Kingdom at the time of

commencement of the Constitution.

76. In early period of history of British Parliament,

at the commencement of every Parliament, it has been

the custom, the Speaker sought by humble petition the

rights and privileges.  The petitions were granted by

Her Majesty’s by conferring upon the power, the

65

privileges asked for.  In subsequent period, the Common

started insisting that the privileges are inherent in

the House.  The first major recognition and acceptance

of Parliamentary privileges found reflected in the Bill

of Rights, 1688.  The Bill of Rights, 1688 was an Act

declaring the rights and liberties of the subject and

settling the succession of the Crown. Article IX of the

Bill of Rights provides as follows:–

“Freedom of Speech ­ That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament:”

77. The above declaration made in Bill of Rights

thereafter has been firmly established and till date

enjoyed by the House of Commons of the United Kingdom.

Erskine May  in 'Parliamentary Practice, 24th  Edition'

while dealing with privileges of freedom of speech says

following with regard to the Bill of Rights:­

“Article IX of the Bill of Rights 1689 confers on ‘proceedings in Parliament’ protection from being ‘impeached or questioned’ in any ‘court or place out of Parliament’. Except in the limited circumstances mentioned below, none of these critical terms is defined, so that

66

it has often fallen to the courts to arrive at judgments about their meaning, against the background of parliamentary insistence on the privilege of exclusive cognizance of proceedings (see above) and concern that judicial interpretation should not narrow the protection of freedom of speech which article IX affords.”  

78. There is  no  doubt that  reports  of the Standing

Committee of the Parliament are also Parliamentary

proceedings.  Participation of members of Parliament in

normal course is usually by a speech but their

participation in Parliamentary proceedings is not

limited to speaking only.  Participation of members of

the Parliament is also by various other recognised

forms such as voting, giving notice of a motion,

presenting a petition or submitting a report of a

Committee, the modern forms of expression by which the

wish and will of Parliamentarians is expressed.   The

report submitted by Standing Committee of Parliament is

also another form of expression. Thus, the

Parliamentary privileges which are contained in Sub­

clause (2) of Article 105 to individual Parliamentary

member are also extended by virtue of Sub­clause (3) of

67

Article 105 to the Parliamentary Committee Reports. The

Parliamentary privileges contained in Article IX of

Bill of Rights thus also protect the Parliamentary

Standing Committee Reports. In this Context, references

to few English cases are relevant.   The case of

Stockdale Vs. Hansard, 9 A.D. & E.2 Page 1112  is

referred.   The case was an action for a publication

defaming the plaintiff’s character by imputing that he

had published an obscene libel. Following was stated by

Lord Denmen, C.J.  

“Thus the privilege of having their debates unquestioned, though denied when the members began to speak their minds freely in the time of Queen Elizabeth, and punished in its exercise both by that princess and her two successors, was soon clearly perceived to be indispensable and universally acknowledged. By consequence, whatever is done within the walls of either assembly must pass without question in any other place. For speeches made in parliament by a member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete impunity.....”  

79. Another judgment which needs to be noted is

Bradlaugh V. Gossett (1884) 12 Q.B.D. 271.  The

plaintiff  Bradlaugh  was  a  duly elected burgess to

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serve in the House of Commons.  The House resolved that

the Serjeant­at­arms shall exclude Mr. Bradlaugh from

the House until he shall engage not further to disturb

the proceedings of the House.  Lord Coleridge, C.J.

stated as follows:­     

“.....What is said or done within the walls of Parliament cannot be inquired into in a court of law. On this point all the judges in the two great cases which exhaust the learning on the subject, — Burdett v. Abbott 14 East , 1, 148 and Stockdale v. Hansard 9 Ad & E 1 ; — are agreed, and are emphatic. The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, “They would sink into utter contempt and inefficiency without it.”

80. Another case in which question of Parliamentary

privilege with respect to Parliamentary  report of a

select committee of House of Commons was involved was

the case of Dingle Vs Associated Newspapers Ltd. & Ors.

(1960) 2 Q.B. 405.  The plaintiff sued for damages for

libels appearing in the issues of the Daily Mail

Newspaper.   The plaintiff alleged that the defendants

falsely and maliciously printed and published an

69

article concerning the circumstances in which the

shares in Ardwick Cemetery Ltd. were acquired by the

Manchester Corporation.   A Committee of the House of

Commons has also submitted a report that the

Corporation obtained the shares by presenting a one­

sided view, which failed to disclose the true position

of the company on a break­up.

81. Pearson, J. Referring to Bill of Rights, 1688 and

the case of Bradlaugh V. Gossett said following:­

“....Reference was made to the Bill of Rights, 1688, s. 1, art.9, on freedom of speech, which provides: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of parliament.”

Reference was also made to Bardlaugh v. Gossett, and it is sufficient to read a short portion of the headnote: “The House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute law which has relation to its internal procedure only. What is said or done within its walls cannot be inquired into in a court of law. A resolution of the House of Commons cannot change the law of the land.  But a court of law has no right to inquire into the propriety of a resolution of the House restraining a member from doing within the

70

walls of the House itself something which by the general law of the land he had a right to do.”  There is a clear affirmation of the exclusive right of Parliament to regulate its own internal proceedings.

That was one of the points put forward and, in my view, it is quite clear that to impugn the validity of the report of a select committee of the House of Commons, especially one which has been accepted as such by the House of Commons by being printed in the House of Commons Journal, would be contrary to section 1 of the Bill of Rights.   No such attempts can properly be made outside Parliament.....”

82. Another judgment which also related to proceeding

in Parliament is  Church of Scientology of California

Vs. Johnson­Smith (1972) 1 Q.B. 522.  Referring earlier

judgment in  Dingle Vs. Associated Newspapers,  Browne,

J. said following:­

“The most recent case to which I was referred was Dingle Vs. Associated Newspapers Ltd. (1960) 2 Q.B. 405.   The plaintiff’s claim in that case was in respect of an article which had appeared in a newspaper which he said was defamatory of him.   It was held in that case that the court could not inquire into the validity of a select committee of the House of Commons on which the article complained of had apparently been partly based.   The invalidity suggested in that case seems to have been a suggestion that there was some sort of procedural defect in the

71

proceedings of the committee, which of course is quite a different set of facts from the present case.  But it seems to me that it really involved the same principle as is involved in this case.   As I understand it the plaintiff there was trying to question proceedings in Parliament in order to support in certain respects his case based on a libel published outside Parliament and was held not entitled to do that.  By analogy with this case it seems to me that the plaintiff’s here are trying to use what happened in Parliament in order to support a part of their case in respect of this libel published outside Parliament in the television broadcast.

I am quite satisfied that in these proceedings it is not open to either party to go directly, or indirectly, into any question of the motives or intentions of the defendant or Mr. Hordern or the then Minister of Health or any other Member of Parliament in anything they said or did in the House.....”      

83. What was held in the above cases clearly establish

that it is now well settled that proceedings undertaken

in the Parliament including a report of the Standing

Committee cannot be challenged before any Court.  The

word 'challenge' includes both 'impeaching' and

'questioning' the Parliamentary Committee Reports.

84. After having noticed the nature and extent of

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Article 9 of the Bill of Rights (1688), we now proceed

to consider the question, as to whether, use of

parliamentary materials including Standing Committee

Report in courts, violates the parliamentary privilege

as enshrined in the Article 9 of Bill of Rights

(1688). The most important judgment to be noticed in

the above regard is the judgment of House of Lords in

Pepper (Inspector of Taxes) v. Hart and related

appeals, 1993(1) All ER 42.  A Seven Member Committee

of House of Lords heard the case looking to the

importance of the issue raised.  The opinion expressed

by the  Lord Browne­Wilkinson  was concurred by all

except one. The two questions which arose in the case,

were noticed in following words by Lord Browne

Wilkinson:

“....However, in  the  circumstances which I will relate, the appeals have also raised two questions of much wider importance. The first is whether in construing ambiguous or obscure statutory provisions your Lordships should relax the historic rule that the courts must not look at the parliamentary history of legislation or Hansard for the purpose of construing such legislation.   The second is

73

whether, if reference to such materials would otherwise be appropriate, it would contravene SI, art 9 of the Bill of Rights (1688) or parliamentary privilege 795.”

85. Lord Wilkinson also considered Article 9 of Bill

of Rights (1688), in the context that whether such use

of parliamentary materials will contravene the

parliamentary privilege. The argument of learned

Attorney General that the use of parliamentary

material by the courts shall amount to questioning of

the freedom of speech or debate, was repelled holding

that the court would be giving effect to what was said

and done there.   Considering the aforesaid following

was stated by the House of Lords:  

“Article 9 is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech). But, even given a generous approach to this construction, I find it impossible to attach the breadth of meaning to the word 'question; which the Attorney General urges. It must be remembered that art 9 prohibits questioning not only 'in

74

any court' but also in any 'place out of Parliament'. If the Attorney General's submission is correct, any comment in the media or elsewhere on what is said in Parliament would constitute 'questioning' since all members of Parliament must speak and act taking into account what political commentators and others will say. Plainly art 9 cannot have effect so as to stifle the freedom of all to comment on what is said in Parliament, even though such comment may influence members in what they say.  

In my judgment, the plain meaning of art 9, viewed against the historical background in which it was enacted, was to ensure that members of Parliament were not subjected to any penalty, civil or criminal, for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule will not involve the courts in criticising what is said in Parliament. The purpose of looking at Hansard will not be to construe the words used by the minister but to give effect to the words used so long as they are clear. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what is said and done there.”

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86. The House of Lords also observed that Hansard has

frequently been used in cases of judicial review and

following was stated in this context:  

"Moreover, the Attorney General's contentions are inconsistent with the practice which has now continued over a number of years in cases of judicial review. In such cases, Hansard has frequently been referred to with a view to ascertaining whether a statutory power has been improperly exercised for an alien purpose or in a wholly unreasonable manner. In Brind v Secretary of State for the Home Dept [1991] 1 All ER 720, [1991] 1 AC 696 it was the Crown which invited the court to look at Hansard to show that the minister in that case had acted correctly (see [1991] 1 AC 696 at 741). This House attached importance to what the minister had said (see [1991] 1 All ER 720 at 724, 729­730, [1991] 1 AC 696 at  749, 755­756).  The Attorney General accepted that references to Hansard for the purposes of judicial review litigation did not infringe art 9. Yet reference for the purposes of judicial review and for the purposes of construction are indistinguishable.  In both type of cases, the minister's words are considered and taken into account by the court; in both, the use of such words by the courts might affect what is said in Parliament.”

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87. In the end  Lord Wilkinson  held that reference to

parliamentary materials for purpose of construing

legislation does not breach Article 9 of the Bill of

Rights (1688). Following was held:

"....For the reasons I have given, as a matter of pure law this House should look at Hansard and give effect to the parliamentary intention it discloses in deciding the appeal. The problem is the indication given by the Attorney General that, if this House does so, your Lordships may be infringing the privileges of the House of Commons.

For the reasons I have given, in my judgment reference to parliamentary materials for the purpose of construing legislation does not breach S 1, art 9 of the Bill of Rights....”

88. Again the House of Lords in Prebble v. Television

New Zealand Ltd Privy Council, (1994) 3 All ER 407

observed that there can no longer be any objection to

the production of Hansard. Following was held by the

Lord Wilkinson:  

"Since there can no longer be any objection to the production of

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Hansard, the Attorney General accepted (in their Lordships' view rightly) that there could be no objection to the use of Hansard to prove what was done and said in Parliament as a matter of history. Similarly, he accepted that the fact that a statute had been passed is admissible in court proceedings. Thus, in the present action, there cannot be any objection to it being proved what the plaintiff or the Prime Minister said in the House (particulars 8.2.10 and 8.2.14) or that the State­owned Enterprises Act 1986 was passed (particulars 8.4.1). It will be for the trial judge to ensure that the proof of these historical facts is not used to suggest that the words were improperly spoken or the statute passed to achieve an improper purpose.  

It is clear that, on the pleadings as they presently stand, the defendants intent to rely on these matters not purely as a matter of history but as part of the alleged conspiracy or its implementation. Therefore, in their Lordships' view, Smellie J was right to strike them out.  But their Lordships wish to make it clear that if the defendants wish at the trial to allege the occurrence of events or the saying of certain words in Parliament without any accompanying allegation of impropriety or any other questioning there is no objection to  that course.”

78

89. R. v. Murphy, (1986) 5 NSWLR 18  is another

judgment where Article 9 of Bill of Rights was

considered in the context of parliamentary

proceedings. The tender of Hansard in curial

proceedings is not a breach of parliamentary

privilege. Hunt J., stated the following:  

“None of the cases to which reference has been made has caused me to alter the interpretation of the Bill of Rights, art 9, which I have proposed. I remain of the view that what is meant by the declaration that “freedom of speech... in parliament ought not to be impeached or questioned in any court or place out of parliament” is that no court proceedings (or proceedings of a similar nature) having legal consequences against a member of parliament (or a witness before a parliamentary committee) are permitted which by those legal consequences have the effect of preventing that member (or committee witness) exercising his freedom of speech in parliament (or before a committee) or of punishing him for having done so.”

90. The next judgment which needs to be noted is

judgment of the House of Lords in  Wilson Vs. First

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Country Trust Ltd. (2003) UKHL 40.  The House of Lords

in the above case has held that decision in Pepper Vs.

Hart (supra)  removed from the law an irrational

exception.   Before the decision in  Pepper Vs. Hart

(supra)  a self­imposed judicial rule excluded use of

parliamentary materials as an external aid. It was held

that the Court may properly use the ministerial and

other statements made in Parliament without in any way

questioning what has been said in Parliament.

Following was laid down in Para 60:­

“....What is important is to recognise there are occasions when courts may properly have regard to ministerial and other statements made in Parliament without in any way 'questioning' what has been said in Parliament, without giving rise to difficulties inherent in treating such statements as indicative of the will of Parliament, and without in any other way encroaching upon parliamentary privilege by interfering in matters properly for consideration and regulation by Parliament alone. The use by courts of ministerial and other promoters' statements as part of the background of legislation, pursuant to Pepper v Hart case, is one instance. Another instance is the established practice by which courts, when adjudicating upon an application for judicial review of a ministerial decision, may have regard to a ministerial statement made in Parliament. The decision of your Lordships' House in Brind v

80

Secretary of State for the Home Dept [1991] 1 All ER 720, [1991] 1 AC 696 is an example of this.....”   

91. The case of Touissant Vs. Attorney General of St.

Vincent, (2007) UKPC 48  is another judgment of the

House of Lords where Article IX of Bill of Rights and

Parliamentary privileges in context of use in Court of

statement made by Prime Minister during Parliamentary

debate came for consideration.   It was held that

Article IX of Bill of Rights precludes the impeaching

or questioning in Court or out of Parliament of the

freedom of speech and debates or proceedings in

Parliament.  It was held that giving a literal meaning

will lead to absurd consequences.   In Para 10,

following was stated by House of Lords:­  

“Against this background, the Board turns to article 9 of the Bill of Rights and the wider common law principle identified in Prebble case. Article 9 precludes the impeaching or questioning in court or out of Parliament of the freedom of speech and debates or proceedings in Parliament. The Board is concerned with the proposed use in court of a statement made during a parliamentary debate. But it notes in passing that the general and somewhat obscure wording of article 9 cannot on any view be read absolutely literally. The prohibition on questioning "out of

81

Parliament" would otherwise have "absurd consequences", e.g. in preventing the public and media from discussing and criticising proceedings in parliament, as pointed out by the Joint Committee on Parliamentary Privilege, paragraph 91 (United Kingdom, Session 1998­1999, HL Paper 43­I, HC 214­I). On the other hand, article 9 does not necessarily represent the full extent of the parliamentary privilege recognised at common law. As Lord Browne­Wilkinson said in Prebble case at p. 332, there is in addition:

"a long line of authority which supports a wider principle, of  which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges."

92. The House of Lords also referred to report of the

Joint Committee, which welcome the use of the

ministerial statement in Court. Para 17 of the judgment

is to the following effect:­

“In such cases, the minister's statement is relied upon to explain the conduct occurring outside Parliament, and the policy and motivation leading to it. This is unobjectionable although the aim and effect is to show that such conduct

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involved the improper exercise of a power "for an alien purpose or in a wholly unreasonable manner": Pepper v. Hart, per Lord Browne­Wilkinson at p. 639A. The Joint Committee expressed the view that Parliament should welcome this development, on the basis that "Both parliamentary scrutiny and judicial review have important roles, separate and distinct in a modern democratic society" (para 50) and on the basis that "The contrary view would have bizarre consequences", hampering challenges to the "legality of executive decisions . . . . by ring­fencing what ministers said in Parliament", and "making ministerial decisions announced in Parliament less readily open to examination than other ministerial decisions"(para 51). The Joint Committee observed, pertinently, that

"That would be an ironic consequence of article 9. Intended to protect the integrity of the legislature from the executive and the courts, article 9 would become a source of protection of the executive from the courts."

93. Office of Government of Commerce Vs. Information

Commissioner, (2010) QB 98, was a case where Stanley

Burnton, J. held that receiving evidence of the

proceedings of Parliament are relevant for historical

facts or events and does not amount to “questioning”.

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In Para 49, following was stated:­  

“49. However, it is also important to recognise the limitations of these principles. There is no reason why the Courts should not receive evidence of the proceedings of Parliament when they are simply relevant historical facts or events: no "questioning" arises in such a case: see [35] above. Similarly, it is of the essence of the judicial function that the Courts should determine issues of law arising from legislation and delegated legislation. Thus, there can be no suggestion of a breach of Parliamentary privilege if the Courts decide that legislation is incompatible with the European Convention on Human Rights: by enacting the Human Rights Act 1998, Parliament has expressly authorised the Court to determine questions of compatibility, even though a Minister may have made a declaration under section 19 of his view that the measure in question is compatible. The Courts may consider whether delegated legislation is in accordance with statutory authority, or whether it is otherwise unlawful, irrespective of the views to that effect expressed by Ministers or others in Parliament: R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789, [2002] QB 129 at [33]:

Legislation is the function of Parliament, and an Act of Parliament is immune from scrutiny by the courts, unless challenged on the ground of conflict with European law. Subordinate legislation derives

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its legality from the primary legislation under which it is made. Primary legislation that requires subordinate legislation to be approved by each House of Parliament does not thereby transfer from the courts to the two Houses of Parliament, the role of determining the legality of the subordinate legislation.

94. Another judgment delivered by Stanley Burnton, J.

in Federation of Tour Operators Vs. HM Treasury, (2007)

EWHC 2062 (Admin)  was a case where objection to

receiving evidence report of Treasury Select Committee

was raised.   In Para 5 of the judgment, objection

raised on behalf of the Speaker of the House was

noticed.  Para 5 is to the following effect:­

“The Speaker of the House of Commons intervened because of the Claimants’ reliance in these proceedings on evidence given to Committees of the House and on a report of the Treasury Select Committee.   It was submitted on his behalf that their reliance on these matters in these proceedings involved a breach of Art.9 of the Bill of Rights and the wider principle of Parliamentary privilege.”

95. The issue as to the admissibility of the

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Parliamentary material was considered in detail while

referring to judgment of House of Lords in Touissant’s

(supra). It was held that there is no basis for

distinguishing between statement of minister in the

House and statement made to a Select Committee.

Following was held in Para 117, 124 and 125 of the

judgment:­

“117. In my judgment, the first two of these propositions are too widely stated. I see no basis for distinguishing between what a Minister says in the House of Commons (or the House of Lords), which may be considered by the Court in a case such as Toussaint , and what he or she says to a Select Committee. Whether what is said by an official should be received in evidence must depend on the circumstances: what he says, his authority, and the reason for which it is sought to rely on it. In general, the opinion of a Parliamentary Committee will be irrelevant to the issues before the Court (as in R (Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin) and, as will be seen, the present case), and accordingly I do not think it sensible to seek to consider the admissibility of such a report in a case in which its contents are relevant.

124. The efficacy or otherwise of APD as an environmental measure is also, in my judgment, a question which, if relevant, is to be determined on the basis of evidence and argument before the Court,

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and not on the basis of the opinion of anyone whose evidence is not before the Court. There is, however, no reason why the Claimants cannot take from what has been said to or by a Select Committee points that can be put before the Court. For example, what was said by the Financial Secretary to the Treasury to the Select Committee on the Environment is not rocket science, but something that would be obvious to anyone who gave the matter some thought. The points he made can be made independently, without reference to his statement.

125. Thus, in the end, I do not think that the Parliamentary material referred to by the Claimants, which I have looked at de bene esse , as such advances their case.”

96. Learned counsel for the respondents has pleaded

reliance on a judgment of R v. Secretary of State for

Trade and others, ex parte Anderson Strathclyde plc,

1983(2)   All ER 233,  Dunn LJ while delivering his

opinion has observed that while using a report in

Hansard 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. The Court had to consider the

statement or statements with a view to determining

what was the true meaning of them, and what were the

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proper inferences to be drawn from them. This,

according to Dunn LJ, would be contrary to Article 9

of the Bill of Rights. Following was stated by the

Court:

“In my judgment there is no distinction between using a report in Hansard for the purpose of supporting 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 proceedings 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 determining 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 examine, 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 fee speech in the House with the possible adverse effects referred to by Browne.”

97. It is relevant to note that the above opinion of

Dunn LJ was specifically disapproved by House of Lords

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in  Pepper (Inspector of Taxes) V Hart (supra).  House

of Lords by referring to above opinion of Dunn LJ had

held that the said case was wrongly decided. It is

useful to extract following observation of House of

Lords:

”In R v Secretary of State for Trade, ex p Anderson Strathclyde plc [1982] 2 All ER 233 an applicant for judicial review sought to adduce parliamentary materials to prove a fact. The Crown did not object to the Divisional Court looking at the materials  but  the  court  itself refused to do so on the grounds that it would constitute a breach of art 9 (at 237, 239 per Dunn LJ). In view of the Attorney General's concession and the decision of this House in Brind's case, in my judgment Ex p Anderson Strathclyde plc was wrongly decided on this point.”

98. Another case learned counsel for the respondents

relied on is  Office of Government Commerce v.

Information Commissioner (supra).  Although, it was

held by Stanley Burnton J that there is no reason why

the courts should not receive evidence of the

proceedings of Parliament when they are simply

relevant historical facts or events; no 'questioning'

arises in such a case. However, in paragraph 58 of the

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judgment following was stated:

"58. In addition, in my judgment, there is substance in Mr. Chamberlain's futher submission, summarised at para 23(b)(i) above. If a party to proceedings before a court (or the Information Tribunal) seeks to rely on an opinion expressed by a select committee, the other party, if it wishes to contend for a different result, must either contend that the opinion of the committee was wrong (and give reasons why), there by at the very least risking a breach of parliamentary privilege, if not committing an actual breach, or, because of the risk of that breach, accept that opinion notwithstanding that it would not otherwise wish to do so. This would be unfair to that party. It indicates that a party to litigation should not seek to rely on the opinion of a parliamentary committee, since it puts the other party at an unfair disadvantage and, if the other party does dispute the correctness of the opinion of the committee, would put the tribunal in the position of committing a breach of parliamentary privilege if it were to accept that the parliamentary committee's opinion was wrong. As Lord Woolf MR said in Hamilton v Al Fayed [1999] I WLR 1569, 1586G, the courts cannot and must not pass judgment on any parliamentary proceedings.”

99. In the same judgment subsequently, it was held

that whether there is any breach of parliamentary

privilege in such a reference   will depend on the

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purpose for which the reference is made. In paragraph

62 of the judgment following has been held:

"62. Generally, however, I do not think that inferences can be drawn from references made by the court to the reports of parliamentary select committees in cases where no objection was taken to its doing so. In addition, as I said in R(Federation of Tour Operators)v HM Treasury [2008] STC 547, whether there is any breach of parliamentary privilege in such a reference will depend on the purpose for which the reference is made. For example, it seems to me that there can be no objection to a reference to the conclusions of a report that leads to legislation, since in such a case the purpose of the reference is either historical or made with a view to ascertaining the mischief at which the legislation was aimed; the reference is not made with a view to questioning the views expressed as to the law as at the date of the report.”

100. We are of the view that the law as broadly

expressed in paragraph 58 of the above case cannot be

accepted. All references to Parliamentary proceedings

and materials do not amount to breach of privilege to

invite contempt of Parliament. When a party relies on

any fact stated in the report as the matter of

noticing an event or history no exception can be taken

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on reliance on such report. However, no party can be

allowed to 'question' or 'impeach' report of

Parliamentary Committee. The Parliamentary privilege

that it shall not be impeached or questioned outside

the Parliament shall equally apply both to a party who

files claim in the court and other who objects to it.

Both parties cannot impeach or question the report. In

so far as the question of unfair disadvantage is

concerned, both the parties are fee to establish their

claim or objection by leading evidence in the court

and by bringing materials to prove their point. The

court has the right to decide the 'lis' on the basis

of the material and evidence brought by the parties.

Any observation in the report or inference of the

Committee cannot be held to be binding between the

parties or prohibit either of the parties to lead

evidence to prove their stand in court of law. Unfair

disadvantage stands removed in the above manner.  

101. The above decisions categorically hold that

Parliamentary materials including report of a Standing

Committee of a Parliament can very well be accepted in

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evidence by a Court.  However, in view of Parliamentary

privileges as enshrined in Article IX of Bill of

Rights, the proceedings of Parliament can neither be

questioned nor impeached in Court of Law.  The cases of

Judicial Review have been recognised as another

category where the Courts examine Parliamentary

proceedings to a limited extent.   

102. This Court in number of cases has also referred to

and relied Parliamentary proceedings including reports

of the Standing Committee of the Parliament. Learned

counsel  for  the  petitioners  have given reference to

several cases in this regard namely, Catering Cleaners

of Southern Railway Vs. Union of India & Anr., (1987) 1

SCC 700  where the Court has taken into consideration

report of a Standing Committee of Petitions. Another

case relied on is  Gujarat Electricity Board Vs. Hind

Mazdoor Sabha & Ors., (1995) 5 SCC 27.  In the case of

State of Maharashtra Vs. Milind & Ors., (2001) 1 SCC 4,

the Court has referred and relied to a Joint

Parliamentary Committee Report. In the case of

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Federation of Railway Officers Association Vs. Union of

India, (2003) 4 SCC 289,  the Court has referred to a

report of the Standing Committee of parliament on

Railways.   In the case of  Ms. Aruna Roy & Ors. Vs.

Union of India & Ors., (2002) 7 SCC 368, report of a

Committee namely S.B. Chavan Committee, which was

appointed by the Parliament was relied and referred.

M.C. Mehta Vs. Union of India, 2017 SCC Online 394 was

again a case where report of a Standing Committee of

Parliament on Petroleum and Natural Gas has been

referred to and relied. Other judgments where

Parliamentary Committee Reports have been relied are

Kishan Lal Gera Vs. State of Haryana & Ors., (2011) 10

SCC 529; Modern Dental College and Research Centre Vs.

State of Madhya Pradesh & Ors., (2016) 7 SCC 353; and

Lal Babu Priyadashi Vs. Amritpal Singh, (2015) 16 SCC

795.

103. Learned counsel appearing for the respondents as

well as learned Attorney General has submitted that it

is true that in the above cases this Court has referred

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to and relied on Parliamentary Committee Reports but

the issue of privilege was neither raised nor

considered.

104. We have already noticed that rules of Parliament,

procedure permit the production of Parliamentary

materials in a Court of Law as evidence.   The

Parliamentary materials which are public documents can

be submitted before the Court without taking any

permission from Parliament.  Thus, no exception can be

taken in producing Reports of Parliament Committee

before a Court of Law.  The Indian Evidence Act, 1874,

which regulates the admission of evidence in Court of

Law, also refers to proceedings in Parliament as a

public document of which Court shall take Judicial

notice.   All these factors lead us to conclude that

there is no violation of any Parliamentary privilege in

accepting Reports of Parliamentary Committee in Court.

105. Now we come to question that when Parliamentary

Reports cannot be questioned or impeached in Court of

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Law for what use they may be looked into by Court of

Law. We have already noticed above ample authorities

which lays down that for events which take place in

Parliament, the facts which was stated before the

Parliament or a Committee, are facts which can be

looked into.  Further when Parliamentary Reports can be

looked into for few purposes as has been conceded by

learned  Attorney General as  well as  the  respondents

themselves, we do not find any justification in reading

any prohibition for use of Reports for other purposes

which are legal and lawful, without breach of any

privilege.  

H. EXCLUSIONARY RULES HOW FAR APPLICABLE IN THE INDIAN CONTEXT

106. We have already noticed English cases dealing with

exclusionary rules and subsequent cases whittling

down the exclusionary rules. We have noticed above

that in large number of cases this Court has referred

to and relied on Parliamentary Standing Committee

Reports. In most of the said cases, the objection

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relating to Parliamentary privilege was neither raised

nor gone into, but there are few cases of this Court

where the principles and cases pertaining to

exclusionary rules were gone into and the court

considered the Parliamentary materials thereafter.

107. In  State of Mysore vs. R.V. Bidap, 1974 (3) SCC

337,  the Constitution Bench of this Court speaking

through  Krishna Iyer, J.  stated that 'Anglo­American

jurisprudence, unlike other systems, has generally

frowned upon the use of parliamentary debates and

press discussions as throwing light upon the meaning

of statutory provisions'.  Justie Krishna Iyer  opined

that there is a strong case of whittling down the Rule

of Exclusion followed in the British courts.

In paragraph 5 of the judgment following was held:

"The Rule of Exclusion has been criticised by jurists as artificial. The trend of academic opinion and the practice in the European system suggest that  interpretation  of a  statute  being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible. Recently, an eminent Indian jurist has reviewed the legal position and expressed his

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agreement with Julius Stone and Justice Frankfurter. Of course, nobody suggests that such extrinsic materials should be decisive but they must be admissible. Authorship and interpretation must mutually illumine and interact. There is authority for the proposition that resort may be had to these sources with great caution and only when incongruities and ambiguities are to be resolved? There is a strong case for whittling down the Rule of Exclusion following in the British courts and for less apologetic reference to legislative proceedings  and  like  materials  to  read the meaning of the words of a statute.”

108. Another Constitution Bench in R.S. Nayak vs. A.R.

Antulay, 1984 (2) SCC 183,  considered the objection

that debates in Parliament or the reports of Committee

cannot be relied as per the 'exclusionary rules'. In

paragraph 32 of the judgment, Desai, J. speaking for

the Constitution Bench noticed the detailed

objections. In paragraph 33 this Court observed that

the trend certainly seems to be in the reverse gear

that is use of report of Committee as external aids to

construction. In paragraph 33 following was stated:

"33.  The trend certainly seems to be in the reverse gear in that in order to ascertain the true meaning of ambiguous words in a statute, reference to the

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reports and recommendations of the commission or committee which preceded the enactment of the statute are held legitimate external aids to construction. The modern approach has to a considerable extent eroded the exclusionary rule even in England.”

109. After considering the certain other cases and the

Bidap case (supra)  this Court held that those

exclusionary rules have been given a descent burial by

this Court. It is useful to extract the following from

paragraph 34 of the judgment:

“34..Further even in the land of its birth, the exclusionary rule has received a serious jolt in Black­Clawson International Ltd. v. Paperwork Waldhef Ascheffenburg AC(2) Lord Simon of Claisdale in his speech while examining the  question of  admissibility  of  Greer Report observed as under:

"At the very least, ascertainment of the statutory objective can immediately eliminate many of the possible meanings that the language of the Act might bear and if an ambiguity still remains, consideration of the statutory objective is one of the means of resolving it.

The statutory objective is primarily to be collected from the provisions of the statute itself. In these days, when the long title can be

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amended in both Houses, I can see no reason for having recourse to it only in case of an ambiguity­it is the plainest of all the guides to the general objectives of a statute. But it will not always help as to particular provisions. As to the statutory objective of these a report. leading to the Act is likely to be the most potent aid and, in my judgment, it would be more obscurantism not to avail oneself of it. here is, indeed clear and high authority that it is available for this purpose".

....A reference to Halsbury's Laws of England, Fourth Edition, Vol. 44 paragraph 901, would leave no one in doubt that 'reports of commissions or committees preceding the enactment of a statute may be considered as showing the mischief aimed at and the state of the law as it was understood to be by the legislature when the statute was passed.' In the footnote under the statement of law cases quoted amongst others are R. v. Olugboja, R. v. Bloxham, in which Eighth report of Criminal Law Revision Committee was admitted as an extrinsic aid to construction. Therefore, it can be confidently said that the exclusionary rule  is flickering  in  its dying embers in its native land of birth and has been given a decent burial by this Court.....

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Therefore, departing from the earlier English decisions we are of the opinion that reports of the committee which preceded the enactment of a legislation, reports of Joint Parliamentary Committee, report of a commission set up for  collecting.  information  leading  to the  enactment are permissible external aids to construction....................

The objection therefore of Mr. Singhvi to our looking into the history of the evolution of the section with all its clauses, the Reports of Mudiman Committee and K Santhanam Committee and such other external aids to construction must be overruled.”

110. Thus, in the above two cases, this Court has

accepted that Parliamentary materials can be looked

into, that too after considering the exclusionary

rules which prohibited use of Parliamentary materials

in courts. As observed above, learned senior counsel,

Shri Harish Salve and Shri K.K. Venugopal, learned

Attorney General  have not disputed that Parliamentary

reports and materials can be used for the purposes of

taking into consideration legislative history for

interpretation of statute as well as for considering

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the statement made by a Minister. When there is no

breach of privilege in considering the Parliamentary

materials and reports of the Committee by the Court

for the above two purposes, we fail to see any valid

reason for not accepting the submission of the

petitioner that courts are not debarred from accepting

the Parliamentary materials and reports as evidence

before it, provided the court does not proceed to

permit the parties to question or impeach the reports.

111. Learned counsel for the respondents have also

referred to judgment of this Court in  Jyoti Harshad

Mehta (Mrs) and others vs. Custodian and others, 2009

(10) SCC 564.

112. In the above case, the court was considering an

Enquiry Committee Report, namely, Janakiraman

Committee Report. In the above context following

observations were made in paragraph 57 of the

judgment:

"57. It is accepted fact that the reports of the Janakiraman Committee, the Joint Parliamentary Committee and the Inter­Disciplinary Group (IDG) are

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admissible only for the purpose of tracing the legal history of the Act alone. The contents of the report should not have been used by the learned Judge of the Special Court as evidence,”

113. In paragraph 28(viii)), the arguments of

appellants were noticed to the effect that Judge,

Special Court, committed a serious illegality insofar

as he relied upon the Janakiraman Committee Report,

which was wholly inadmissible in evidence. The learned

Judge, Special Court, had passed order on an

application of custodian which was set aside by this

Court by remitting back the matter to Special Court

with some directions. The Special Court thereafter

relying on the said Report passed order. In this

context, observations were made in paragraph 57 that

the report can be admissible only for the purpose of

tracing the legal history of the Act alone and the

contents of the report should not have been used by

the learned Judge as evidence. This Court also took

view that various audit reports were relied which were

not considered. In paragraph 58 following was stated:

"58. It does not appear that the Special

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Judge had considered this aspect of the matter in great detail. The learned Judge, Special Court, should consider the aforementioned two audit reports so as to arrive at a positive finding with regard to the liabilities and assets possessed by them so as to enable to pass appropriate orders.”

114. The Special Court was deciding the  lis  in which

party had filed the evidence. Ignoring the same

reliance was placed on the report with regard to which

observation was made in paragraph 57. The Special

Judge ought to have considered the evidence which were

produced by the appellants and only reliance placed on

the evidence of Janakiraman Committee Report was

rightly disapproved by this Court. The above was a

case where sole reliance was placed on the Report

which was disapproved. The observation made by the

Court that the report should not have been used by the

learned Judge as evidence was made in above context

which cannot be treated to mean that the report cannot

be accepted by a court as evidence.  

115. Another judgment which has been relied by the

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respondents is  State Bank of India vs. National

Housing Bank and others, 2013 (16) SCC 538.  In the

above case, this Court made following observation in

paragraph 50 of the judgment which has been relied:  

“50. It is well settled by a long line of judicial authority that the findings of even a statutory Commission appointed under the Commissions of Inquiry Act, 1952 are not enforceable proprio vigore as held in Ram Krishna Dalmia v. Justice S.R. Tendolkar and Ors. : AIR 1958 SC 538 and the statements made before such Commission are expressly made inadmissible in any subsequent proceedings civil or criminal. The leading judicial pronouncements Maharaja Madhava Singh v. Secretary of State for India in Council (1903­04) 31 IA 239 (PC), M.V. Rajwade v. Dr. S.M. Hassan MANU/NA/0131/1953 : AIR 1954 Nag 71: 55 Cri LJ 366, Ram Krishna Dalmia v. Justice S.R., AIR 1958 SC 538, State of Karnataka v. Union of India,(1977) 4 SCC 608, Sham Kant v. State of Maharashtra : (1992) Supp (2) SCC 521 on that question were succinctly  analysed by  this Court  in  : (2001) 6 SCC 181, Paras 29­34. Para 34 of the judgment inter alia reads:  

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

105

116. In the above case, the Court has relied on

Janakiraman Committee which was not a statutory body,

authorised to collect evidence and was a body set up

by the Governor of Reserve Bank of India in exercise

of its administrative functions which has been noted

by this Court in paragraph 51. The observation made by

this Court in paragraph 50 has to be read in the

context of observations made by this Court in

paragraph 51 which is to the following effect:

51. Therefore, Courts are not bound by the conclusions and findings rendered by such Commissions. The statements made before such Commission cannot be used as evidence before any civil or criminal court. It  should  logically  follow  that even the conclusions based on such statements can also not be used as evidence in any Court. 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 obviously in exercise of its administrative functions,

... the Governor, RBI set up a Committee on 30 April, 1992 to investigate into the possible irregularities in funds management by commercial banks and financial institutions, and in particular, in relation to their dealings in Government securities, public sector

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bonds  and  similar  instruments.  The Committee was required to investigate various aspects of  the transactions of SBI and other commercial banks as well as financial institutions in this regard.”

117. The above judgment cannot be read to mean that

Parliamentary Committee reports cannot be adverted to.

This Court has referred to Commissions of Inquiry Act,

1952. The observations were made in the light of law

as contained in Section 6 of the Commissions of

Inquiry Act, 1952. The next case relied on by the

respondents is judgment of this Court in  Common

Cause : A Registered Society vs. Union of India, 2017

(7) SCC 158.  

118. In the above judgment, this Court has referred to

Parliamentary Standing Committee Report in paragraphs

14 and 16. In paragraph 21 it was held that opinion of

the Parliamentary Standing Committee would not be

sacrosanct. In paragraph 21 following observation was

made:

"21....The view of the Parliamentary

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Standing Committee with regard to the expediency of the Search/Selection Committee taking decisions when vacancy/vacancies exists/exist is merely an opinion which the executive, in the first instance, has to consider and, thereafter, the legislature has to approve. The said opinion of the Parliamentary Standing Committee would therefore  not  be  sacrosanct. The  same, in any case, does not have any material bearing on the validity of the existing provisions of the Act.”

119. The above judgments do not lend support to the

submission of the respondents that Parliamentary

Standing Committee Report cannot be taken as evidence

in the Court or it cannot be looked into by the Court

for any purpose.  

I.  SEPARATION OF POWERS AND MAINTAINING A DELICATE

BALANCE BETWEEN THE LEGISLATURE, EXECUTIVE AND

JUDICIARY

120. The essential characteristic of a Federation is a

distribution of limited Executive, Legislative and

Judicial authority and the supremacy of Constitution.

Justice B. K. Mukherjea, Chief Justice, in Ram Jawaya

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Kapur Vs. State of Punjab, AIR 1955 SC 549 referred to

essential characteristics of Separation of Powers in

the Indian Constitution.   In Para 12, following has

been held:­

“....The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.....”

121. Separation of powers between Legislative,

Executive and Judiciary has been regarded as basic

feature of our Constitution in  Kesavananda Bharti Vs.

State of Kerala, AIR 1973 SC 1461.  The Constitution

does not envisage supremacy of any of the three organs

of the State. But, functioning of all the three organs

is controlled by the Constitution.   Wherever,

interaction and deliberations among the three organs

have been envisaged, a delicate balance and mutual

respect are contemplated. All the three organs have to

strive to achieve the constitutional goal set out for

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'We the People'. Mutual harmony and respect have to be

maintained by all the three organs to serve the

Constitution under which we all live. These thoughts

were expressed by this Court time and again. Suffice it

to refer, Constitution Bench of this Court in Special

Reference No. 1 of 1964 where Gajendragadkar, CJ., laid

down the following:

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

122. Learned Attorney General has submitted that

relying on the Doctrine of 'Separation of Powers',

this Court may desist from taking into consideration

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the Parliamentary Committee's Report. As observed

above, there is no parliamentary privilege that

Parliamentary Committee Reports or other parliamentary

materials cannot be given in evidence in any court of

law. By accepting Parliamentary Report as an evidence,

there is no breach of any parliamentary privilege. It

is also not out of place to mention that there is a

vital difference between parliamentary sovereignty in

England and Constitutional supremacy in this country.

It is well settled that any law made by Parliament,

which violates the fundamental rights guaranteed under

Part III of the Constitution, can be set aside by this

Court in exercise of Jurisdiction of judicial review

which has been granted by the Constitution to this

Court.   Parliamentary sovereignty, as enjoyed by the

United Kingdom is not a parallel example in reference

to functioning of different organs in this country, as

controlled by the Constitution of India.   The

parliamentary privilege, as guaranteed   under Article

9 of Bill of Rights, (1688) that no proceeding of

Parliament can be questioned and impeached thus has to

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be applied, subject to express constitutional

provisions as contained in Constitution of India.  

123. We thus conclude that although, there is no rigid

separation of powers under the Constitution of India,

but functions of all the three wings have been

sufficiently differentiated and each has freedom to

carry out its functions unhindered by any other wing

of the State. However, in functioning of all the three

organs, a delicate balance, mutual harmony and respect

have to be maintained for true working of the

Constitution.

J. ARTICLE 121 & ARTICLE 122 OF THE CONSTITUTION OF  

INDIA

124. Relying on Article 121 and Article 122 of the

Constitution of India, it has been contended by the

learned Attorney General as well as other learned

counsel appearing for the respondents that principle

enshrined in the above­mentioned articles do suggests

that Court has to keep away from entertaining any

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challenge to any parliamentary proceeding, including a

Parliamentary Committee Report.

125. Although, heading of Article 122 reads 'Courts not

to enquire into proceedings of the Parliament' but

substantive provision of Constitution, as contained in

sub­clause (1) of Article 122 debars the Court from

questioning the validity of any parliamentary

proceeding  on the ground of any alleged irregularity

or procedure. The embargo on the Court to question the

proceeding is thus limited on the aforesaid ground

alone. There is no total prohibition from examining

the validity of the proceeding if the proceedings are

clearly in breach of fundamental rights or other

constitutional provisions. Constitution Bench in

Special Reference No. 1 of 1964 (supra), while

considering the scope of Article 194 of the

Constitution laid down the following:  

"Our Legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written  Constitution itself  and  can  be exercised within the legislative fields allotted to their jurisdiction by the

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three Lists under the Seventh Schedule; but  beyond  the Lists,  the  Legislatures cannot travel.   They can no doubt exercise their plenary legislative authority and discharge their legislative  functions  by  virtue  of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our Legislatures including the Parliament is normally controlled by the provisions contained in Part III of the  Constitution.  If  the  Legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our Legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the constitution.”

126. As observed above, the Constitution of India

empowers this Court in exercise of judicial review to

annul the legislation of a Parliament if it breaches

the fundamental rights, guaranteed under Part III of

the Constitution. Thus, the privileges which are

enjoyed by the Indian Legislature have to be

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considered in light of the provisions of the Indian

Constitution. These are the clear exceptions to the

parliamentary privileges, as applicable in House of

Commons on the strength of Article IX of Bill of

Rights, 1688.   This Court in  Special Reference No. 1

of 1964 (Supra)  noticing the different constitutional

provisions referred to various privileges which

although were enjoyed by the House of Commons, but are

no longer available to the Indian Legislature.

127.   The power of judicial review enjoyed by this

Court in reference to legislation and some

parliamentary proceedings are recognised exceptions,

when this Court can enter into parliamentary domain.

In all other respects, parliamentary supremacy with

regard to its proceedings, the procedure followed has

to be accepted.  

128.  In view of the above foregoing discussion, we

are of the view that on the strength of Article 122,

it cannot be contended that Parliamentary Standing

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Committee Reports can neither be admitted in evidence

in Court nor the said reports can be utilised for any

purpose.  

K. COMMENTS ON REPORTS OF PARLIAMENTARY COMMITTEE

WHETHER  BREACH OF PRIVILEGE

129. The freedom of speech and expression is one of

the most cherished fundamental rights guaranteed and

secured by the Constitution of India. As early as in

1950 Patanjali Sastri, J., in  Romesh Thappar vs. The

State of Madras, 1950 SCR 594, stated :

“freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so  essential  for  the  proper functioning of the processes of popular government, is possible.”

130. Again this Court in  Bennett Coleman & Co. and

Ors. Vs. Union of India (UOI) and Ors. , AIR 1973 SC

106 (150), held: “Freedom of the Press is the Ark of

the Covenant of Democracy because public criticism is

essential to the working of its institutions.” No

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organ  of the  state,  be it  Judicature,  Executive  or

Legislature is immune from   public criticism; public

criticism is an instrument to keep surveillance and

check on all institutions in a democracy.  

131.  In Wason v. Walter (supra) Cockburn CJ., stated:  

"....it may be further answered that there is perhaps no subject in which the public have a deeper interest than in all that relates to the conduct of public servants of the State,­ no subject of parliamentary discussion which more requires to be made known than an inquiry relating to it....”

132.   It was further emphasised that deeper public

interest is served in making public, the conduct of a

public servant or any inquiry public,  Cockburn CJ.,

further held that there is a full liberty of public

writers to comment on the conduct and motives of

public men. The recognition of making comment on the

conduct was noticed as of recent origin. It was

further clearly laid down that comments on Members of

both the Houses of the Parliament can also be made by

which comments, it is the public which is the gainer.

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Following weighty observations were made by  Cockburn

CJ.:

“....The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized. Comments on government, on ministers and officers of state, on members of both houses of parliament, on judges and other public functionaries, are now made every day, which half a century ago would have been the subject of actions  or  ex officio  informations, and would have brought down fine and imprisonment on publishers and authors. Yet who can doubt that the public are gainers by the change, and that, though injustice may often be done, and though public men may often have to smart under the keen sense of wrong inflicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the discharge of public duties?....”

133.  In reference to 'parliamentary privilege', House

of Lords after due consideration of Article 9 of Bills

of Right 1888 in Pepper v. Hart (House of Lords) 1993

AC 593, laid down : 'Article 9 cannot have effect, so

as to stifle the freedom of all to comment on what is

said in Parliament, even though such comment may

influence members in what they say.' What is said in

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Parliament is thus clearly subject to fair comments by

all including Press.

134.   A Constitution Bench of this Court in  M.S.M.

Sharma vs. Sri Krishna Sinha and others, AIR 1959 SC

395, had occasion to consider parliamentary privileges

in reference to publication of a speech delivered by a

Member of Bihar Legislative Assembly, commonly known

as  Search Light Case.  In his speech, Member of Bihar

Legislative Assembly made critical reference to an ex­

Minister of Bihar. The Speaker, on a point of order

raised by another Member directed expunging of certain

words stated with regard to ex­Minister. However,

notwithstanding the Speaker's  direction of  expunging

the portion of the speech, the  Search Light,  in its

issue dated 31st May, 1957, published a complete report

of the speech of the Member including the portion

which was directed to be expunged, a notice was given

to the Editor of the  Search Light, Shri Sharma, to

show cause as to why appropriate action be not

recommended for breach of privilege of the Speaker and

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the Assembly in respect of the offending publication.

Shri Sharma, Editor filed writ petition  under Article

32 contending that the said notice and the proposed

action is in violation of his fundamental right to

freedom of speech and expression under Article 19(1)

(a). This Court held that principle of  harmonious

construction  must be adopted in considering Article

19(1)(a) and Article 194(1) and latter part of sub­

clause (3) of Article 194. The Court further held that

the publication of the speech by  Search Light  in law

has to be regarded as unfaithful report, prima facie,

constituting a breach of of privilege, following

observations were made in paragraph 32:

“32....The effect in law of the order of the Speaker to expunge a portion of the speech of a member may be as if that portion had not been spoken. A report of the whole speech in such circumstances, though factually correct,  may,  in  law, be regarded as perverted and unfaithful report and the publication of such a perverted and unfaithful report of a speech, i.e., including the expunged portion in derogation to the orders of the Speaker passed in the House may, prima facie, be regarded as constituting a breach of the privilege of the House arising out of the publication of the offending news item and that is

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precisely the charge that is contemplated by the Committee's resolution and  which  the petitioner  is by the notice called upon to answer. We prefer to express no opinion as to whether there has, in fact, been any breach of the privilege of the House, for of that the House along is the judge.”

135. The freedom of speech and expression as

guaranteed under Article 19(1)(a) is available to a

citizen to express his opinion and comment which is

also available with regard to court proceedings as

well. In respect of Parliamentary proceedings, the

said right is not stifled unless the comment amounts

to reflection or personal attack on individual Member

of Parliament or to the House in general. In this

context reference is also made to a judgment of House

of Lords in  Adam v. Ward, 1917 AC 309,    where

proceedings of Parliament were published containing a

slander remark on a servant of the Crown. An enquiry

was conducted with regard to imputation and report was

published for vindication of the honour of the

servant. Following was laid down by Lord Atkinson of

House of Lords:

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"I think it may be laid down as a general proposition that where a man, through the medium of Hansard's reports of the proceedings in Parliament, publishes to the world vile slanders of a civil, naval, or military servant of the Crown in relation to the discharge by that servant of the duties of his office he selects the world as his audience, and that it is the duty of the heads of the service to which the servant belongs, if on investigation they find the imputation against him groundless, to publish his vindication to the same audience to which his traducer has addressed himself. In my view the Army Council would have failed in their duty to General Scobell personally, and to the great Service which they in a certain sense govern and control, if they had not given the widest circulation to the announcement of the General's vindication.”

136. In R v. Murphy, 1986 (5) NSWLR 18, Hunt, J.  held

that what is said and done in Parliament can without

any breach of parliamentary privilege be impeached and

questioned by the exercise by ordinary citizens of

their freedom of speech.  Following was held:

"I have already pointed out that what is said and done in parliament can without any breach of parliamentary privilege be impeached and questioned by the exercise by ordinary citizens of their freedom of speech (whether or not in the media),

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notwithstanding the fear which such conduct may engender in members of Parliament (and committee witnesses) as to the consequences of what they say or do. In those circumstances, it can be neither necessary nor desirable in principle that what is said or done in parliament should not be questioned (in the wider sense) in courts or similar tribunals where no legal consequences are to be visited upon such members (or witnesses) by the proceedings in question.”

137.  The Privilege Committee of the Lok Sabha has also

recognised the right of fair comment in following

words:

"Nobody would deny the members or as a matter of fact, any citizen, the right of fair comment. But if the comments contain personal attack on individual members of Parliament on account of their conduct in Parliament, or if the langauage of the comment is vulgar or abusive, they cannot be deemed to come within the bounds of fair comment or justifiable criticism”.

(As quoted in “Press and Parliament” by A.N. Grover in J.C.P.S.VXIII 1984 at p.141.)

138. Erskine May  in 'Parliamentary Practice' (Twenty

Fourth Edition)  defines contempt in the following

words:

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"Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a  tendency,  directly  or  indirectly,  to produce such results, may be treated as a contempt even though there is no precedent of the offence.”

139.  Referring to a case, Burdett v. Abbot, (1811) 104

ER 559, 561, this Court in  Special Reference No.1 of

1964, (1965) 1 SCR 413, stated as follows:

"In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important constituent of a democratic State, must function not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will held the peaceful development, growth and stablisation of the democratic way of life in this country.”  

140.  This Court in the Special Reference case also had

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observed that the caution and principle which are kept

in mind by the courts while punishing for contempt are

equally true to the Legislatures also. Following

observations were made by this Court:

"Before we part with this topic, we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt. So far as the courts are concerned, Judges always keep in mind the warning addressed to them by Lord Atkin in Andre Paul v. Attorney­General of Trinidad, AIR 1936 PC 141. Said Lord Atkin, “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out­spoken comments of ordinary men.” We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity  and  decorum  which  they observe in their judicial conduct. We venture to think that what is true of the Judicature is equally true of the legislatures.”

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141. The power to punish for contempt is a privilege

available to Parliament which is defined as 'keynote

of Parliamentary Privileges'.  

142. From what has been stated above, we are of the

view that fair comments on report of the Parliamentary

Committee are fully protected under the rights

guaranteed under Article 19(1)(a). However, the

comments when turns into personal attack on the

individual member of Parliament or House or made in

vulgar or abusive language tarnishing the image of

member or House, the said comments amount to contempt

of the House and breach of privilege.  

143.  In the present case, learned counsel for the

respondents have contended that in the event, they

raise objections regarding Parliamentary Committee

Report which has adversely commented on their role

they shall be liable to be proceeded for committing

contempt  of the House, hence, this Court may neither

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permit the Parliamentary Committee Report to be taken

in evidence nor allow the petitioners to rely on the

report. No party is precluded in making fair comments

on the Parliamentary Committee Report which comments

remain within the bounds of a fair comments and does

not transgress the limits prescribed for fair

comments.   The Parliamentary Committee Reports when

published, the press are entitled to make fair

comments. We   fail to see any reason prohibiting the

parties who   were referred to in the Parliamentary

Committee Report to make such fair comments or

criticism of the Report as permissible under law

without breach of privilege.  

L. ADJUDICATION IN COURTS AND PARLIAMENTARY COMMITTEE

REPORT

144.  'Adjudication' is the power of Court to

decide and pronounce a judgment and carry it into

effect between the persons and parties who bring a

cause before it for a decision. Both for civil and

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criminal cases people look forward to Courts for

justice. To decide controversy between its subject had

always been treated as a part of sovereign functions.

Constitutional law developments emphasised separation

of powers of Governmental functions for protecting

rights and liberties of people.  

145. Montesquieu  in L'Esprit des Lois, 1748,  the

modern exponent of the doctrine of separation of

powers states:

"When the legislative and executive powers are united in the same person, or on the same body or Magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the legislative and executive powers. Were it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. Were it joined with the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers...”.

146. In our Constitution although there is no strict

separation of powers of the three branches that is

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Legislature, Judicature and Executive but

Constitutional provisions entrust separate functions

of each organ with clarity which makes it clear that

our Constitution does not contemplate assumption by

one organ function which belongs to another organ of

the State. A nine­Judge Constitution Bench in  I.R.

Coelho (Dead) by LRs. v. State of Tamil Nadu, 2007 (2)

SCC 1,  while dealing with the separation of powers

stated following in paragraphs 64, 65 and 67: