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

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

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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 4 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 5 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 6 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 7 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 1 and others v. Union of India and others 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 8 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 9 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. 10 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 11 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 12 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 13 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. 14 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 2 Bharati Sripadagalvaru v. State of Kerala and another , 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 3 others , 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 16 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. 4 State of T.N. , 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 17 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 5 limitation. In State of West Bengal v. Anwar Ali Sarkar , 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. 6 State of Orissa , 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 7 Pradesh and others 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 8 observations of the Judicial Committee in Queen v. Burah 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. 9 Attorney-General for Canada 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. 10 19. Recently, in Binoy Viswam v. Union of India and others 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 11 Nehru Gandhi v. Shri Raj Narain and another , Beg, J., in his concurring opinion, quoted what M.C. Setalvad, a distinguished jurist of India, had said in ―The Common Law in th India‖ (The Hamlyn Lectures), 12 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 12 Jawaya Kapur v. State of Punjab ) . 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 Kesavananda Bharati’s the Indian context when the Court in case treated the same as a basic feature of the Constitution of India. In State of Himachal Pradesh v. A Parent of a Student 13 of Medical College, Simla and others , 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 14 and another , 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. 15 23. In Bhim Singh v. Union of India and others , 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. 16 24. In Mansukhlal Vithaldas Chauhan v. State of Gujarat , Federation of Railway Officers Association and others v. 15 (2010) 5 SCC 538 16 AIR 1997 SC 3400 : (1997) 7 SCC 622 25 17 Union of India and State of Maharashtra and others v. 18 Raghunath Gajanan Waingankar , 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. 19 Chander Hass and another 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 20 Kashmir and others , 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 21 Singh (Dead) by LRs. etc. 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 22 others , 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. 23 and others 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 24 India and another 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. 25 Krishnamurthy , the Court, after referring to Premium 26 Granites and another v. State of T.N. and others , M.P. Oil 27 Extraction and another v. State of M.P. and others , 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 28 another and State of Punjab and others v. Ram Lubhaya 29 Bagga and others , 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. 30 The State of Uttar Pradesh 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 31 K.S. Srinivasan v. Union of India 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 32 others v. Union of India and others , 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 33 v. Income Tax Officer and another 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 text that purports, in the name constitutive 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 34 in Constitutional Interpretation . )‖ 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 35 India v. Naveen Jindal and another . 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 36 India and others , 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 37 others v. Union of India , 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. 38 State of Madras . 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. 39 Union of India 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 40 of India . The Court, after referring to Sambhu Nath Sarkar 41 v. State of West Bengal and others , 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 42 State of West Bengal and others and Khudiram Das v. 43 State of West Bengal and others , reproduced a passage from 44 Maneka Gandhi v. Union of India and another 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 M. Nagaraj and others v. context, reference had been made to 45 Union of India and others 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 46 another , 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 47 Mills Ltd. and others v. Union of India and others , ruled that the principle of implied limitation is attracted to the sphere of constitutional interpretation. 48 45. In Manoj Narula v. Union of India , 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 49 recognised. In Melbourne Corporation v. Commonwealth , 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 50 Australia and another [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 51 others , a Constitution Bench, while interpreting Article 80 of the Constitution of India, relied upon a passage from G. 52 Narayanaswami v. G. Pannerselvam and others . 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 53 Sheth and another , 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 & 54 Insurance Co. v. United States 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 55 the devil ‖ 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 56 legislation...." . th 52. Woodrow Wilson, the 28 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, 57 whilst Congress in its Committee rooms is Congress at work ‖. 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 58 of a legislature. " 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 59 54. Lord Campion in his book 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 60 Lord Beaconsfield :- "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 61 further been detailed thus :- 59 "An Introduction to the Procedure of House of Commons" 60 rd Lord Beaconsfield in Hansard, 3 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 62 members of the Commons. The majority of parliamentary committees are Select Committees which are designed to:-

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 64 members among its sub-committees. 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 65 oversight or housekeeping responsibilities. (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 59 66 Senate. They, in general, examine the administration, policy developments and budgetary estimates of government departments and agencies. Certain standing committees are also given mandates to examine matters that have implications such as official languages policy and multiculturalism policy. K.4 Parliamentary Committees in Australia 68. The primary object of parliamentary committees in Australia is to perform functions which the Houses themselves are not well fitted to perform, i.e., finding out the facts of a case, examining witnesses, sifting evidence, and drawing up reasoned conclusions. Because of their composition and method of procedure, which is structured but generally informal compared with the Houses, committees are well suited to the gathering of 67 evidence from expert groups or individuals. In a sense, they 'take Parliament to the people' and allow organisations and individuals to participate in policy making and to have their views placed on the public record and considered as part of the decision-making process. Not only do committee inquiries enable 66 Special committees (sometimes called select committees), e. g., the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, are sometimes established by the House to study specific issues or to investigate public opinion on policy decisions. They are sometimes called task forces but should not be confused with government TASK FORCES. See http://www.thecanadianencyclopedia.ca/en/article/committees/ 67 See https://www.aph.gov.au/Parliamentary_Business/Committees 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 68 lines are important features. 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 69 administration and government policy-making process. 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 70 soon as they complete the work assigned to them. The parliamentary committees are invariably larger in size and are recommendatory in nature. Be it stated, there are 24 Department

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.

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

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 th 82. Black's Law Dictionary, 6 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 71 from the general law.‖ 84. The concept of Parliamentary Privilege has its origin in Westminster, Britain in the 17th century with the passage of the 71 nd nd May , 22 ed., p. 65. For other definitions of privilege, see Maingot, 2 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 72 of the commonwealth.‖ M.1 Parliamentary privilege under the Indian Constitution

73 Constitution of India, being relevant in this context, is reproduced below:- “Article 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 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 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.‖ 87. Sub-article (2) of the aforesaid Article clearly lays the postulate that no member of Parliament shall be made liable to any proceedings in any court in respect of anything he has said 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 . 73 89. In U.P. Assembly case [Special Reference No. 1 of 1964] , 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 74 others , 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 75 House of Lords in the case of Hamilton v. Al Fayed 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 76 Wellesley v. Duke of Beaufort , 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 77 (Speaker of the House of Assembly) 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 78 General) , 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 79 Coleridge, C.J., in the case of Bradlaugh v. Gossett , 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 80 100. Sir William Holdsworth in his book 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" 85

referring to U.P. Assembly case [Special Reference No. 1 of 1964] (supra), opined:- ―267. Indeed, the thrust of the decision was on the examination of the power to issue unspeaking warrants immune from the review of the courts, and 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 81 107. A Constitution Bench in R.S. Nayak v. A.R. Antulay , 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 82 v. Union of India 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 83 another , 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 84 others . That apart, parliamentary debates have also been referred to appreciate the context relating to the construction of a 85 statute in Novartis AG v. Union of India and others , State of Madhya Pradesh and another v. Dadabhoy’s New Chirimiri 86 Ponri Hill Colliery Co. Pvt. Ltd . , Union of India v. Steel 87 Stock Holders Syndicate, Poona , K.P. Varghese (supra), and Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income 88 Tax and others . 110. In Ashoka Kumar Thakur v. Union of India and 89 others , 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. 90 Surat Art Silk Cloth Manufacturers’ Association, Surat , 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. 91 113. In Pepper v. Hart , 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 92 114. The Supreme Court of Canada in R. v. Vasil 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- 93 Inflation Act (Canada) , have relaxed the exclusionary rule. 115. In Dharam Dutt and others v. Union of India and 94 others , 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. 95 Commissioner of Income Tax, Mysore , 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.

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 96 and another , 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, recommended inter alia, that the government should consider direct employment of catering cleaners by the Railway Administration to avoid their exploitation. 96 (1987) 1 SCC 700 107 97 129. In State of Maharashtra v. Milind and others , 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 98 others , the education policy framed by NCERT was challenged by the petitioners. This Court while dealing with the said issue, referred, in to the Parliamentary committee report which extensio, 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. 99 131. In M.C. Mehta v. Union of India and others , 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. 100 132 . In Lal Babu Priyadarshi v. Amritpal Singh , 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 101 others , Modern Dental College and Research Centre and 102 others v. State of Madhya Pradesh and others and 103 Krishan Lal Gera v. State of Haryana and others 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., 104 speaking the tone and tenor in Jajbhay v Cassim , 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." 105 136. In Miranda v. Arizona , 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

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 106 Pandey v. Union of India , Vishaka and others v. State of 107 Rajasthan and others , Prakash Singh and others v. Union 108 of India and others , Common Cause (A Regd. Society) v. 109 Union of India and Shakti Vahini v. Union of India and 110 others . 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 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 1 PART A 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 1 adopted for licensing vaccines 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) 2 PART A 2 On 12 August 2014, a Bench of two judges formulated the questions 2 which would have to be addressed in the course of the proceedings. They are:

st 3 At the hearing, the petitioners relied upon the 81 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 3 PART A 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:

3 Id, at pages 320-321 4 PART A 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:

A substantial question involving the interpretation of the Constitution having arisen, two questions have been referred to the Constitution Bench under Article 145(3):

4 Id, at page 322 5 PART B 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 6 PART B 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, 7 PART B 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 8 PART B (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 9 PART B 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 10 PART C 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 11 PART C 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 12 PART C 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 th are such as existed immediately before the enforcement of the 44 amendment 5 to the Constitution . 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 th The Constitution (44 amendment) Act, 1978 came into force from 20 June, 1979. 13 PART C 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 14 PART C 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 15 PART C 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 16 PART D 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 17 PART D forth in Erskine May’s Treatise on The Law, Privileges, Proceedings and 6 Usage of Parliament : “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 7 Select Committee, the Bill constitutes the order of reference . Select committees are a microcosm of the House. During the course of their work, 8 Select Committees rely upon documentary and oral evidence : “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 9 with the report of the committee : “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 th Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, (Lexis Nexis, 24 edn., 2011), 37. 7 Id, at pages 805-806. 8 Erskine May, at page 818. 9 Erskine May, at page 825. 18 PART D committees may take evidence with no intention of producing a subsequent report and publish it without comment.” 10 A Select committee decides when to publish any report which it has agreed . 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 11 and working of these committees . 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 th Rules of Procedure and Conduct of Business in Lok Sabha, (Lok Sabha Secretariat, 15 edn., April 2014). Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), (published by the Secretary th General, 9 edn., August 2016). 19 PART D 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 20 PART D 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.” 21 PART D 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. 22 PART E 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. 23 PART E Article 9 has provided the foundation for a line of judicial precedent in the English Courts. In 1884, the principle was formulated In Bradlaugh v 12 Gossett : “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.” 13 In Dingle v Associated Newspapers Ltd , 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 14 Scientology of California v Johnson-Smith , 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 24 PART E 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. 15 28 In Pepper (Inspector of Taxes) v Hart , 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 25 PART E 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 16 Television New Zealand (“Prebble”) 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 th England, 17 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 26 PART E 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 17 Murphy (“Murphy”) 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 27 PART E 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 18 (“Hamilton”) . 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 28 PART E 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. 29 PART E 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 19 (“Toussaint”) , 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 30 PART E 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. 31 PART E 33 In Regina (Bradley and Others) v Secretary of State for Work and 20 Pensions (Attorney General intervening) , 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) 32 PART E 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 21 intervening) 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 33 PART E 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. 34 PART E 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. 22 Wheeler v The Office of the Prime Minister 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) 35 PART E 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. 23 In Wilson v First County Trust Ltd 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 36 PART E 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 24 Edward Wyndham Buchanan 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 37 PART E 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 38 PART E 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 39 PART E 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 40 PART E 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 25 State Legislatures . 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 25 Special Reference No. 1 of 1964: (1965) 1 SCR 413 41 PART E 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 42 PART E 26 Constitution Bench in P V Narasimha Rao v State (CBI/SPE) . 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 27 those of the Privy Council noted earlier ). Interpreting Article 105(2), Justice Bharucha observed thus:

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) 43 PART E 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:

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 28 Id, at pages 729-730 44 PART E 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 29 Speaker, Lok Sabha , 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 45 PART E

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:

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 46 PART E 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:

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 47 PART E of its citizens. Among the conclusions in the judgment, of relevance to the present case, are the following:

judgment of the Constitution Bench in Amarinder Singh v Special Committee, 34 Punjab Vidhan Sabha . 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 48 PART F 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 49 PART F 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 35 standard : “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 HE EPARATION OF OWERS AND EGISLATIVE NTERFERENCE IN UDICIAL ROCESS Peter A Gerangelos, T S P L I J P , C ONSTITUTIONAL P RINCIPLES AND L IMITATIONS (Hart Publishing, 2009). 50 PART F 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 36 is construed to be descriptive and not normative . On the other hand, other scholars regard the doctrine as “a fundamental underlying constitutional 37 principle which informs the whole British constitutional structure” . Yet, even 36 See A Tomkins, P UBLIC L AW (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, 51 PART F 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 38 39 one”. He cites Professor Robert Stevens : “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 nd C Munro, Studies in Constitutional Law, 2 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, T HE S EPARATION OF P OWERS AND L EGISLATIVE I NTERFERENCE IN J UDICIAL P ROCESS , ONSTITUTIONAL RINCIPLES AND IMITATIONS C P L (Hart Publishing, 2009) 39 R Stevens, ‘A Loss of Innocence?: Judicial Independence and the Separation of powers’ (1999) 19 O XFORD J OURNAL OF L EGAL S TUDIES 365. 52 PART F 40 constitutional state founded on the rule of law . 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 41 judiciary even against Parliament, in the absence of a written Constitution . 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 42 from being a “one branch – one function approach” with limited exceptions, to a concept which involves an integration of the ‘division of work’ and ‘checks and 43 balances’ . 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 HILOSOPHICAL OUNDATIONS OF ONSTITUTIONAL AW Thorburn (eds.) P F C L , (Oxford University Press, 2016) 221 (hereinafter, “Philosophical Foundations of Constitutional Law”). 43 See MJC Vile, C ONSTITUTIONALISM AND THE S EPARATION OF P OWERS (Oxford University Press, 1967). 53 PART F 44 Separation of Powers ’ 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 45 people will be able to control the machinery of the State.” 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 46 amount of interference by one branch into the functions and tasks of the other. Aileen Kavanagh, has presented a scholarly analysis of separation of powers 47 in a chapter titled ‘ The Constitutional Separation of Powers ’. She concurs with the view expressed by MJC Vile that separation of powers includes two 44 Id. 45 Id, at page 13 46 ONSTITUTIONALISM AND THE EPARATION OF OWERS See, MJC Vile, C S P (Oxford University Press, 1967). 47 Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David Dyzenhaus and Malcolm Thorburn (eds.) P HILOSOPHICAL F OUNDATIONS OF C ONSTITUTIONAL L AW , (Oxford University Press, 2016) 221. 54 PART F 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 48 interest of good governance. Instead of an isolated compartmentalization of branches of government, she highlights the necessary independence, interdependence, interaction and interconnection between these branches in a 49 complex interactive setting. 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 50 interconnected-also has some pedigree in canonical literature.” 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 51 support each other’s role in the joint endeavor.” 48 See, D Kyritsis, ‘What is Good about Legal Conventionalism?’ (2008) 14 L EGAL T HEORY 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, S EPARATION OF P OWERS IN T HEORY AND P RACTICE : A N I NTERNATIONAL P ERSPECTIVE (Nijmegen: Wolf Publishing, 2010) 99-122, 115 (as cited in Philosophical Foundations of Constitutional Law, at page 237). 55 PART F 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 52 Waldron called the ‘Principle of Institutional Settlement’. 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 53 secured for the benefit of citizens. 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), R IGHTS , C ULTURE , AND THE L AW : T HEMES FROM THE L EGAL AND P OLITICAL P HILOSOPHY OF J OSEPH R AZ (Oxford University Press, 2003) 45-70. 53 XFORD OURNAL OF EGAL TUDIES See, J King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 O J L S 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). 56 PART F 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 54 had “conceptual simplicity with an impeccable academic pedigree” , 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 55 manner and on an ever-growing discretionary basis. 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 HE EW EPARATION OF OWERS HEORY FOR THE ODERN TATE Eoin Carolan, T N S P - A T M S (Oxford University Press, 2009) 253. 55 Id. 57 PART F 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 56 or legislative in nature. 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 57 dispersed.” 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 58 communicative process has taken place . 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 58 PART F “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 65 particularized.” 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 59 Jawaya Kapur v State of Punjab , this Court held:

59 (1955) 2 SCR 225 59 PART F Reduced to its core, separation entails that one organ or institution of the state cannot usurp the powers of another. 60 In Re: Powers, Privileges and Immunities of State Legislatures , 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. 61 In Kesavananda Bharati v State of Kerala , 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; 62 (5) Federal character of the Constitution.” 60 (1965) 1 SCR 413 61 (1973) 4 SCC 225 62 Id, at page 366 60 PART F Justices Shelat and Grover emphasized the doctrine of separation as a part of the checks and balances envisaged by the Constitution:

while the Constitution does not embody a rigid separation of governmental powers, a judicial function cannot be usurped by the legislature:

violate the basic structure. 66 In I R Coelho v State of Tamil Nadu , 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 61 PART F

ruled on the importance of separation as an entrenched constitutional principle. The court held:

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 62 PART F that the conditions on which it is based are so fundamentally altered that the 70 decision could not have been given in the altered circumstances. 71 53 In State of UP v Jeet S Bisht , 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 63 PART F

Development (“MPLAD”) Scheme, which allocates funds to MPs for development work in their constituencies was considered by a Constitution 73 Bench of this Court in Bhim Singh v Union of India . 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 64 PART F 55 In Supreme Court Advocates-on-Record Association v Union of 74 India , 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:

56 In State of West Bengal v Committee for Protection of Democratic 76 Rights, West Bengal , 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 77 in Common Cause v Union of India , 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 65 PART F 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 66 PART F not permit the Court to overstep its jurisdiction. Judicial 78 discipline must caution the Court against such an approach.” 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 67 PART F 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 68 PART G 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 69 PART G 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 70 PART G 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 71 PART G 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. 79 Justice G P Singh 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 80 view 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 th RINCIPLES OF TATUTORY NTERPRETATION Justice G P Singh, P S I (14 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. 72 PART G 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 73 PART G 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 74 PART G 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 75 PART G 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 81 Jyoti Harshad Mehta v The Custodian , this Court held that a report of the Janakiraman committee could not have been used as evidence by the Special Court. The court held:

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 76 PART G In The Sole Trustee, Lok Shikshana Trust v The Commissioner of Income 83 Tax, Mysore , 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:

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 77 PART G 85 In Onkar Nath v The Delhi Administration , another Bench of three judges elaborated upon Section 57(4). Justice YV Chandrachud, speaking for the Court, held 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 78 PART H

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 79 PART H 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 80 PART H 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 89 book titled ‘ The Strange Alchemy of Life and Law ’ , 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. 81 PART H 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 82 PART H 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 83 PART H 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; 84 PART H (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. 85 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 th enquiry.   On   15   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 nd Committee submitted its report (72   Report) to Rajya th Sabha on 30   August, 2013 which was also laid on the th table   of   Lok   Sabha   on   30   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 st detailed report, namely, 81   Report on “action taken by the Government on the recommendations/ observations nd contained   in   the   72   Report   on   the   alleged irregularities in the conduct of studies using Human Papilloma   Virus(HPV)   vaccine   by   PATH”   in   India   was 6 rd submitted   to   Rajya   Sabha   on   23   December,   2014   and rd also laid on the table of Lok Sabha on 23   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 nd th reliance on 72   Report presented on 30   August, 2013 st rd and   81   Report   presented   on   23   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 th Commons as it exists on 26   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. nd st 16. The   72   and   81   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'. th By the end of 19   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 nd st taken   in   the   petitioners   obtaining   72   and   81 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 58 57(4)   in   no   manner   is   diminished   by   the   fact   that amendments   were   made   in   Section   57(4)   by   the Presidential Adaptation Order. 68. One more provision of Evidence Act which needs to be   noted   is   Section   74   which   deals   with   the   public documents.   Section   74   of   the   Evidence   Act   is   as follows: “ 74.   Public   documents. —The   following documents are public documents :— (1)  Documents forming the acts, or  records of the acts— (i)  of the sovereign authority, (ii)  of official bodies and  tribunals, and (iii)  of public officers,  legislative, judicial and  executive,of any part of India or  of the Commonwealth, or of a  foreign country; of any part of  India or of the Commonwealth, or  of a foreign country; (2)  Public records kept in any State of  private documents.” 69. According   to   Section   74   documents   forming   the acts,   or   records   of   the   acts   of   Legislature   of   any part of India is a public document. We have noticed above   that   Parliament   has   already   adopted   report   of 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”. 60 71. A   judgment   of   Bombay   High   Court   dealing   with Section 74 of the Evidence Act in reference to Article 105   of   the   Constitution   of   India   and   the   Rules   of Procedure   and   Conduct   of   Business   in   Lok   Sabha   has been   cited,   namely,   Standard   Chartered   Bank   vs. A.B.F.S.L & ORS., 2001 (4) BOM.LR 520.   In the above case,   a   report   of   Joint   Parliamentary   Committee   was objected   by   the   learned   counsel   for   the   Standard Chartered Bank. In paragraph 1 of the judgment, issue which   has   arisen   in   the   case   was   noticed   to   the following effect: “1.Two   points   arise   for determination.   Firstly,   whether   the Report   of  Joint  Parliamentary  Committee is   a   public   document   as   defined   under Section  74  of   the   Indian   Evidence   Act, 1872. Secondly, even if it is a public document,   whether   the   findings   of   the Joint Parliamentary Committee constitute evidence   as   defined   under   Section  3  of the Indian Evidence Act.” 72. It was contended before the Bombay High Court that Joint   Parliamentary   Committee   report   is   a   public document as defined in Section 74(1) of the Evidence Act.   In   paragraph   2   of   the   judgment   arguments   have 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% 62 arrangement, has not been found by JPC. There is no finding to the effect that the suit transaction was part of such an arrangement. Therefore, I am of the view that Can Bank Mutual Fund is entitled to tender   the   Report   of   JPC   as   evidence only to establish that there was a 15% arrangement   between  Standard   Chartered Bank  and   HPD.   The   issue   as   to   whether the suit transaction was a part of such a   practice/arrangement   will   have   to   be established   independently   by   Can   Bank Mutual Fund. However, in order to prove that   issue,   the   Report   will   be   one   of the   important   pieces   of   evidence.   At this   stage,   I   am   concerned   with admissibility.   The   correctness   of   the findings   will   ultimately   depend   on   the entire view of the matter. The question as to what weight the Court should give to   the  findings  of  JPC   will  ultimately depend on the totality of circumstances brought before the Court.” 73. In paragraph 6 ultimately the Court held : “6. Accordingly,   I   hold   that   the Report of JPC is a public document under Section   74(1)(iii)   of the Evidence Act. Secondly,   that   the   said   Report   is admissible as evidence of the existence of   15%   arrangement   between  Standard Chartered Bank and HPD. That subject to above, Can Bank Mutual Fund will have to prove whether the suit transaction took place under such an arrangement as any other   Fact.   At   the   request   of   Mr. Cooper, it is clarified that this ruling is   subject   to   my   earlier   ruling   dated 27th   June,   2001   on   the   argument   of Standard   Chartered   Bank  on 63 inadmissibility   of   documents   under Sections   91   and 92 of the Evidence Act and also  in view  of the provisions  of the Benami Transactions Abolition Act.” G. NATURE   AND   EXTENT   OF   PARLIAMENTARY   PRIVILEGES REGARDING REPORTS OF COMMITTEES OF BRITISH PARLIAMENT 74. In   the   Constituent   Assembly   Debates   on   draft Article   85   (now   Article   105   of   the   Constitution   of India) and draft Article 169 (now Article 194 of the Constitution  of India), various members have  brought amendments and prayed that privileges of the House of the   Parliament   be   enumerated   and   the   Constitution should   not   refer   to   House   of   Commons   of   the   United Kingdom   for   referring   to   its   privileges.     Dr.   B.R. Ambedkar   in   his   reply   in   the   Constituent   Assembly Debates on 03.06.1949 stated as follows:­

64

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. th Erskine   May   in   'Parliamentary   Practice,   24   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 68 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 72 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.” 75 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.” 76 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 77 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 79 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.   is   another   judgment   of   the Vincent,   (2007)   UKPC   48 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 82 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”. 83 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 84 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 85 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, 86 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 87 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 88 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 89 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 90 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 91 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 92 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 93 Federation of Railway Officers Association Vs. Union of the Court has referred to a India, (2003) 4 SCC 289,   report   of   the   Standing   Committee   of   parliament   on Railways.   In the case of   Ms. Aruna Roy & Ors. Vs. report of a Union of India & Ors., (2002) 7 SCC 368,   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 94 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 95 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 96 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 97 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 98 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 99 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..... 100 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 101 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 102 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 103 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 104 respondents   is   State   Bank   of   India   vs.   National In   the Housing   Bank   and   others,   2013   (16)   SCC   538.   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 106 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 107 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 108 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 109 '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 110 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 111 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 112 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 113 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 114 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 115 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 116 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. 117 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 118 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   in its Search Light,   st issue dated 31  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 119 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   in law Search Light   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 120 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:  121 " 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), 122 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.   in   ' Erskine   May Parliamentary   Practice'   (Twenty Fourth   Edition)   defines   contempt   in   the   following words: 123 "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 124 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.” 125 141. 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 126 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 127 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 128 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: “ 64.   In   fact,   it   was   settled   centuries ago that for preservation of liberty and prevention   of   tyranny   it   is   absolutely essential   to   vest   separate   powers   in three different organs. In Federalist 47, 48, and 51, James Madison details how a separation   of   powers   preserves   liberty and   prevents   tyranny.   In   The   Federalist 47,   Madison   discusses   Montesquieu's treatment of the separation of powers in the Spirit of Laws (Book XI, Chapter 6). There Montesquieu writes,  "When   the   legislative   and   executive powers are united in the same person, or in   the   same   body   of   Magistrates,   there can be no liberty.... Again, there is no liberty,   if   the   judicial   power   be   not separated   from   the   legislative   and executive."  Madison   points   out   that   Montesquieu   did not   feel   that   different   branches   could not   have   overlapping   functions,   but 129 rather that the power of one department of Government should not be entirely in the   hands   of   another   department   of Government.  65. Alexander Hamilton in The Federalist 78,   remarks   on   the   importance   of   the independence of the judiciary to preserve the separation of powers and the rights of the people: “The   complete   independence   of   the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution,   I   understand   one   which contains certain specified exceptions to the   legislative   authority;   such,   for instance, that it shall pass no bills of attainder, no ex post facto laws, and the like.   Limitations   of   this   kind   can   be preserved   in   practice   in   no   other   way than   through   the   medium   of   courts   of justice, whose duty it must be to declare all acts contrary to the manifest tenor of   the   Constitution   void.   Without   this, all the reservations of particular rights or   privileges   would   amount   to   nothing.” (434)  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   recognized by this Court in Special Reference No.1 of 1964, (1965) 1 SCR 413.” 147.   Adjudication   of   rights   of   the   people   is   a 130 function   not   entrusted   to   the   Legislature   of   the country.   Apart   from   legislation   our   Parliament   has become multi­functional institution performing various roles,   namely,   inquisitorial,   financial   and administrative   surveillance,   grievance   redressal   and developmental.     Parliament,   however,   is   not   vested with   any   adjudicatory   jurisdiction   which   belongs   to judicature under the Constitutional Scheme. This Court in  State of Karnataka v. Union of India, 1977 (4) SCC 608,   while   considering   Articles   105   and   194   of   the Constitution of India laid down following: "Our Constitution vests only legislative power   in   Parliament   as   well   as   in   the State   Legislatures.   A   House   of Parliament   or   State   Legislature   cannot try   anyone   or   any   case   directly,   as   a Court of Justice can, but it can proceed quasi­judicially in cases of contempt of its   authority   and   take   up   motions concerning   its   “privileges”   and “immunities”   because,   in   doing   so,   it only   seeks   removal   of   obstructions   to the   due   performance   of   its   legislative functions.   But,   it   any   question   of jurisdiction   arises   as   to   whether   a matter falls here or not, it has to be decided   by   the   ordinary   courts   in appropriate   proceedings.   For   example, the   jurisdiction   to   try   a   criminal offence, such as murder, committed even within   a   House   vests   in   ordinary 131 criminal   courts   and   not   in   a   House   of Parliament or in a State Legislature.” 148.     The   function   of   adjudicating   rights   of   the parties has  been entrusted to the constituted courts as  per  Constitutional  Scheme,  which adjudication  has to be made after observing the procedural safeguards which include right to be heard and right  to produce evidence.  149.   In   Dingle   v.   Associated   Newspapers   Ltd.   and Others (supra)   in a case of damages for libel where defendants   relied   on   Parliamentary   Committee   Report published, Pearson, J., laid down as follows: " ...in   my   view,   this   court   should   make its   own   findings   based   on   the   evidence adduced and on the arguments presented in this   court,   and   that   should   be   done without   regard   to   any   decisions   reached or opinions expressed or findings made by a   different   tribunal   having   a   different function, and, probably, different issues before it, and having received different evidence and a different presentation of the case.” 150.   The apprehension of the respondents that their case   shall   be   prejudiced   if   this   Court   accepts   the 132 Parliamentary   Committee   Report   in   evidence,   in   our opinion is misplaced. By acceptance of a Parliamentary Committee Report in evidence doest not mean that facts stated in the Report stand proved. When issues, facts come before a Court of law for adjudication, the Court is to decide the issues on the basis of evidence and materials brought before it and in which adjudication Parliamentary Committee Report may only be one of the materials, what weight has to be given to one or other evidence   is   the   adjudicatory   function   of   the   Court which may differ from case to case. The Parliamentary Committee Reports cannot be treated as conclusive or binding of what has been concluded in the Report. When adjudication   of   any   claim   fastening   any   civil   or criminal liability on an individual is up in a Court of   law,   it   is   open   for   a   party   to   rely   on   all evidences   and   materials   which   is   in   its   power   and Court   has   to   decide   the   issues   on   consideration   of entire   material   brought   before   it.   When   the Parliamentary Committee Report is not adjudication of any   civil   or   criminal   liability   of   the   private 133 respondents,   their   fear   that   acceptance   of   report shall prejudice their case is unfounded. We are, thus, of   the   opinion   that   by   accepting   Parliamentary Committee   Report   on   the   record   in   this   case   and considering the Report by this Court, the respondents' right to dispel conclusions and findings in the Report are not taken away and they are free to prove their case in accordance with law.   151.   OUR CONCLUSIONS (i) 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. (ii) The publication of the reports not being only permitted, but also are being encouraged by the Parliament.   The   general   public   are   keenly interested   in   knowing   about   the   parliamentary proceedings   including   parliamentary   reports 134 which are steps towards the governance of the country.   The   right   to   know   about   the   reports only arises when they have been published for use of the public in general. (iii) Section 57(4) of the Indian Evidence Act, 1872 makes it clear that the course of proceedings of Parliament   and   the   Legislature,   established under any law are facts of which judicial notice shall be taken by the Court. (iv) Parliament   has   already   adopted   a   report   of “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. (v) That mere fact that document is admissible in evidence   whether   a  public   or   private   document does  not lead to draw any presumption that the contents   of   the   documents   are   also   true   and correct. (vi) When a party relies on any fact stated in the 135 Parliamentary Committee Report as the matter of noticing an event or history no exception can be taken on such reliance of the 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. Any observation in the report or inference of the   Committee   cannot   be   held   to   be   binding between the parties. The parties are at liberty to   lead   evidence   independently   to   prove   their stand in a court of law. (vii) Both   the   Parties   have   not   disputed   that Parliamentary   Reports   can   be   used   for   the purposes of legislative history of a Statute as well as for considering 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 136 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,   on   record,   before   it,   provided   the Court does not proceed to permit the parties to question and impeach the reports. (viii) 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 '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. (ix) We are of the view that fair comments on report of   the   Parliamentary   Committee   are   fully 137 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. (x) The   function   of   adjudicating   rights   of   the parties has   been entrusted to the constituted courts   as   per   Constitutional   Scheme,   which adjudication has to be made after observing the procedural safeguards which include right to be heard   and   right     to   produce   evidence. Parliament,   however,   is   not   vested   with   any adjudicatory   jurisdiction   which   belong   to judicature under the Constitutional scheme. (xi) Admissibility   of   a   Parliamentary   Committee Report   in   evidence   does   not   mean   that   facts stated in the Report stand proved. When issues of   facts   come   before   a   Court   of   law   for adjudication, the Court is to decide the issues 138 on the basis of evidence and materials brought before it.  152. The questions having been answered as above, let   these   writ   petitions   be   listed   before   the appropriate Bench for hearing. ..............................J. ( ASHOK BHUSHAN ) NEW DELHI, MAY 09, 2018.