Constitution of India - 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.
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. 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. 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. The Parliamentary Standing Committee report being in the public domain can invite fair comments 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.
IN THE SUPREME COURT OF
INDIA
CIVIL ORIGINAL JURISDICTION
May 09, 2018
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.]
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S. No.
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Heading
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A.
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Introduction
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B.
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The factual background
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B.1 The Reference
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C.
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Contentions of the petitioners
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D.
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Contentions of the respondents
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E.
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Supremacy of the Constitution
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F.
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Constitutional limitations upon the legislature
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G.
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Doctrine of separation of powers
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H.
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Power of judicial review
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I.
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Interpretation of the Constitution – The nature of duty cast upon
this Court
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I.1 Interpretation of fundamental rights
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I.2 Interpretation of other constitutional provisions
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J.
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A perspective on the role of Parliamentary Committees
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K.
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International position of Parliamentary Committees
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K.1 Parliamentary Committees in England
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K.2 Parliamentary Committees in United States of America
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K.3 Parliamentary Committees in Canada
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K.4 Parliamentary Committees in Australia
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L.
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Parliamentary Committees in India
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L.1 Rules of Procedure and Conduct of Business in Lok Sabha
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M.
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Parliamentary privilege
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M.1 Parliamentary privilege under the Indian Constitution
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M.2 Judicial review of parliamentary proceedings and its privilege
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N.
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Reliance on parliamentary proceedings as external aids
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O.
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Section 57(4) of the Indian Evidence Act
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P.
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The decisions in which parliamentary standing committee report/s have
been referred to
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Q.
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Conclusions
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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 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 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 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 directions. The assistance of learned Attorney General was also sought
keeping in view the gravity of the issue involved. After hearing the matter,
the two-Judge Bench in Kalpana Mehta and others v. Union
of India and others, (2017) 7 SCC 307 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 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 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.
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 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 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 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.
E. Supremacy of the
Constitution
13. The Constitution of India is the supreme fundamental law and
all laws have to be in consonance or in accord with the Constitution. The
constitutional provisions postulate the conditions for the functioning of the
legislature and the executive and prescribe that the Supreme Court is the final
interpreter of the Constitution. All statutory laws are required to conform to the
fundamental law, that is, the Constitution. The functionaries of the three
wings, namely, the legislature, the executive and the judiciary, as has been
stated in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and another, AIR 1973 SC 1461 : (1973) 4 SCC 225 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 constitutional silence. Its inherent dynamism makes it organic and,
therefore, the concept of ―constitutional sovereignty‖ is sacrosanct. It is extremely sacred and, as stated earlier, the
authorities get their powers from the Constitution. It is ―the source‖. Sometimes, the constitutional sovereignty is described as the
supremacy of the Constitution.
14. In State of
Rajasthan and others v. Union of India and others, (1977) 3 SCC 592 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. He further observed that
it is for this Court to uphold the constitutional values and to enforce the
constitutional limitations, for it is the essence of the rule of law.
Elaborating the said concept, Sabharwal, C.J. in I.R. Coelho
(Dead) by LRs. v. State of T.N., (2007) 2 SCC 1 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.
16. Thus, the three wings of the State are
bound by the doctrine of constitutional sovereignty and all are governed by the
framework of the Constitution. The Constitution does not accept transgression
of constitutional supremacy and that is how the boundary is set.
F. Constitutional limitations upon the
legislature
17. The law making power of the Parliament or State legislature is
bound by the concept of constitutional limitation. It is necessary to
appreciate what precisely is meant by constitutional limitation. In State of West
Bengal v. Anwar Ali Sarkar, 1952 SCR 284 : AIR 1952 SC 75 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 Constitution cannot be
ruled out, it must be held to be wholly unconstitutional and void. The emphasis
was laid on constitutional limitation. In K.C. Gajapati
Narayan Deo v. State of
Orissa, 1954 SCR 1 : AIR 1953 SC 375 the Court adverted to the real purpose of legislation and colourable
legislation and, in that context, expressed that when a scrutiny is made, it
may appear that the real purpose of a legislation is different from what
appears on the face of it. It would be a colourable legislation only if it is
shown that the real object is different as a consequence of which it lies within
the exclusive field of another legislature.
18. Dwelling upon the legal
effect of a constitutional limitation of legislative power with respect to a
law made in derogation of that limitation, the Court in Deep Chand v.
State of Uttar Pradesh and others, 1959 Supp. (2) SCR 8 : AIR 1959 SC 648 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 within the constitutional limits and observed the constitutional
conditions.‖
Thereafter, the Constitution Bench referred
to the observations of the Judicial Committee in Queen v.
Burah, (1878) LR 5 I.A. 178 wherein it was observed that whenever a question as to whether the
legislature has exceeded its prescribed limits arises, the courts of justice
determine the said question by looking into the terms of the instrument which
created the legislative powers affirmatively and which restricted the said
powers negatively. The Constitution Bench also referred to the
observations of the Judicial Committee in Attorney-General
for Ontario v. Attorney-General
for Canada, (1912) AC 571 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 limits of its
constitutional power in respect of the subject matter of the statute or in the
method of making it.
19. Recently, in Binoy Viswam
v. Union of India and others, (2017) 7 SCC 59 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 limitation, the law made by the legislature has to be declared ultra vires by the Constitutional
Courts. That power has been conferred on the Courts under the Constitution and
that is why, we have used the terminology ―constitutional sovereignty‖. It is an accepted principle that the rule of law constitutes the
core of our Constitution and it is the essence of the rule of law that the exercise
of the power by the State, whether it be the legislature or the executive or
any other authority, should be within the constitutional limitations.
G. Doctrine of separation of powers
21. Having stated about
constitutional sovereignty and constitutional limitation, we may presently
address the issue as to how the Constitution of India has been understood in
the context of division of functions of the State. In Smt. Indira Nehru
Gandhi v. Shri Raj Narain and another, 1975 Supp. SCC 1 Beg, J., in his concurring opinion, quoted
what M.C. Setalvad, a distinguished jurist of India, had said in ―The Common
Law in India‖ (The Hamlyn Lectures), 12th Series, 1960. We think it
appropriate to reproduce the paragraph in entirety:-
―The Constitution divides
the functions of the Union into the three categories of executive, legislative
and judicial functions
following the pattern of the British North America Act and the Commonwealth of Australia
Act. Though this division of functions is not based on the doctrine of
separation of powers as in the United States yet there is a broad division of functions
between the appropriate authorities so that, for example, the legislature will
not be entitled to arrogate to itself the judicial function of adjudication.
‗The Indian Constitution has not indeed recognised the doctrine of separation
of powers in its absolute rigidity but the functions of the different parts or
branches of the Government have been sufficiently differentiated and consequently
it can very well be said that our Constitution does not contemplate assumption,
by one organ or part of the State, of functions that essentially belong to
another.‘ (See: Rai Saheb Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 : (1955) 2 SCR 225). 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]
22. The doctrine of separation of powers has become concrete in the
Indian context when the Court in Kesavananda
Bharati’s case treated the same as a basic feature of the Constitution of India.
In State of Himachal Pradesh v. A Parent of a Student of Medical
College, Simla and others, (1985) 3 SCC 169 this Court ruled that it is entirely a
matter for the executive branch of the Government to decide whether or not to
introduce any particular legislation. Of course, any member of the legislature
can also introduce legislation but the Court certainly cannot mandate the
executive or any member of the legislature to initiate legislation, howsoever necessary
or desirable the Court may consider it to be. That is not a matter which is
within the sphere of the functions and duties allocated to the judiciary under
the Constitution. The Court further observed that it cannot usurp the functions
assigned to the legislature under the Constitution and it cannot even
indirectly require the executive to introduce a particular legislation or the
legislature to pass it or assume to itself a supervisory role over the
law-making activities of the executive and the legislature. In State of
Tamil Nadu v. State of Kerala and another, (2014) 12 SCC 696 this Court, laying down
the principle of separation of powers,
stated that even without express provision of the separation of powers, the
doctrine of separation of powers is an entrenched principle in the Constitution
of India. The doctrine of separation of powers informs the Indian
constitutional structure and it is an essential constituent of the rule of law.
23. In Bhim Singh v.
Union of India and others, (2010) 5 SCC 538 the Court, for understanding the concept of
separation of powers, observed that two aspects must be borne in mind. One,
that separation of powers is an essential feature of the Constitution and
secondly, that in modern governance, a strict separation is neither possible nor
desirable. Nevertheless, till this principle of accountability is preserved,
there is no violation of separation of powers and the same is founded on keen
scrutiny of the constitutional text. The Constitution does not strictly
prohibit overlap of functions and, in fact, provides for some overlap in a
parliamentary democracy. What it prohibits is such exercise of function
of the other branch which results in wresting away of the regime of constitutional
accountability.
24. In Mansukhlal
Vithaldas Chauhan v. State of Gujarat, AIR 1997 SC 3400 : (1997) 7 SCC 622; Federation of
Railway Officers Association and others v. Union of India, (2003) 4 SCC 289 : AIR 2003 SC 1344 and State of
Maharashtra and others v. Raghunath
Gajanan Waingankar, AIR 2004 SC 4264 the Court applied the principle of restraint, acknowledging and
respecting the constitutional limitation upon the judiciary to recognize the doctrine
of separation of powers and restrain itself from entering into the domain of
the legislature. Elaborating further, this Court in Divisional
Manager, Aravali Golf Club and another v. Chander Hass
and another, (2008) 1 SCC 683 observed that under our constitutional scheme, the Legislature,
Executive and Judiciary have their own broad spheres of operation and each
organ must have respect for the others and must not encroach into each others‘
domain, otherwise the delicate balance in the Constitution will be upset, and
there will be a reaction.
25. In Asif Hameed
and others v. State of Jammu and Kashmir and others, AIR 1989 SC 1899 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 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 (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.
H. Power of judicial review
28. While focussing on
the exercise of the power of judicial review, it has to be borne in mind that
the source of authority is the Constitution of India. The Court has the
adjudicating authority to scrutinize the limits of the power and transgression of
such limits. The nature and scope of judicial review has been succinctly stated
in Union of India and another v. Raghubir Singh (Dead) by LRs. etc., (1989) 2 SCC 754 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 ‗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 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 others, (2007) 8 SCC 279 it has been ruled that
the judiciary should exercise restraint and ordinarily should not encroach into
the legislative domain. In this regard, a reference to a three-Judge Bench decision
in Suresh Seth v. Commr., Indore Municipal Corpn. and others, (2005) 13 SCC 287 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 enactment. In this
context, the Court held that under our constitutional scheme, the Parliament
and legislative assemblies exercise sovereign power to enact law and no outside
power or authority can issue a direction to enact a particular kind of legislation.
While so holding, the Court referred to the decision in Supreme Court
Employees’ Welfare Association v. Union of India and another, (1989) 4 SCC 187 wherein it was held that
no court can direct a legislature to enact a particular law and similarly when
an executive authority exercises a legislative power by way of a subordinate
legislation pursuant to the delegated authority of a legislature, such
executive authority cannot be asked to enact a law which it has been empowered
to do under the delegated authority.
32. Recently, in Census
Commissioner and others v. R. Krishnamurthy, (2015) 2 SCC 796; the Court, after
referring to Premium Granites and another v.
State of T.N. and others, (1994) 2 SCC 691; M.P. Oil Extraction and another v.
State of M.P. and others, (1997) 7 SCC 592 State of Madhya Pradesh v. Narmada
Bachao Andolan and another, (2011) 7 SCC 639 and State of
Punjab and others v. Ram Lubhaya Bagga and others, (1998) 4 SCC 117 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 Courts with wide powers
which the Courts should exercise, without an iota of hesitation or
apprehension, when the fundamental rights of individuals are in jeopardy.
Elucidating on the said aspect, this Court in Virendra
Singh and others v. The State of
Uttar Pradesh, AIR 1954 SC 447 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 Court, in this context, has been aptly
described in the case of K.S. Srinivasan v. Union of India, AIR 1958 SC 419 wherein it was stated:-
"...
All I can see is a man who has been wronged and I can see a plain way out. I
would take it."
35. Such an approach applies with more zeal in case of Article
32 of the Constitution which has been described by Dr. B.R. Ambedkar as
"the very soul of the Constitution - the very heart of it - the most
important Article." Article 32 enjoys special status and, therefore, it is
incumbent upon this Court, in matters under Article 32, to adopt a progressive
attitude. This would be in consonance with the duty of this Court under the
Constitution, that is, to secure the inalienable fundamental rights of individuals.
I. Interpretation of the Constitution –
The nature of duty cast upon this Court
36. Having stated about the supremacy of the
Constitution and the principles of constitutional limitation, separation of
powers and the spheres of judicial review, it is necessary to dwell upon the
concept of constitutional interpretation. In S.R. Bommai
and others v. Union of India and others, (1994) 3 SCC 1 it has been said that for maintaining
democratic process and to avoid political friction, it is necessary to direct
the political parties within the purview of the constitutional umbrella to
strongly adhere to constitutional values. There is no denial of the fact that
the judiciary takes note of the obtaining empirical facts and the aspirations
of the generation that are telescoped into the future. If constitutional provisions
have to be perceived from the prism of growth and development in the context of
time so as to actualize the social and political will of the people that was
put to in words, they have to be understood in their life and spirit with the
further potentiality to change.
37. A five-Judge Bench in GVK Industries
Limited and another v. Income Tax Officer and another, (2011) 4 SCC 36 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 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 that constitutional matrix could one hope to be able to discern its true
meaning, purport and ambit. As Prof. Laurence Tribe points out:
―[T]o
understand the Constitution as a legal text, it is essential to recognize the …
sort of text it is: a constitutive text that purports, in the name of the people…, to bring into
being a number of distinct but inter-related institutions and practices, at
once legal and political, and to define the rules governing those institutions
and practices.‖ (See Reflections on
Free-Form Method in Constitutional Interpretation., 108 Harv L Rev 1221, 1235 (1995))‖
38. The Constitution being an organic document, its ongoing interpretation
is permissible. The supremacy of the Constitution is essential to bring social
changes in the national polity evolved with the passage of time. The
interpretation of the Constitution is a difficult task. While doing so, the
Constitutional Courts are not only required to take into consideration their
own experience over time, the international treaties and covenants but also
keep the doctrine of flexibility in mind. It has been so stated in Union of India
v. Naveen Jindal and another, (2004) 2 SCC 510. 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 Constitution to bring the
political parties within the purview of the constitutional parameters for
accountability and to abide by the Constitution and the laws for their strict
adherence. With the passage of time, the interpretative process has become
expansive. It has been built brick by brick to broaden
the sphere of rights and to assert the constitutional supremacy to meet the
legitimate expectations of the citizens. The words of the Constitution have been
injected life to express connotative meaning.
39. Recently, in K.S.
Puttaswamy and another v. Union of India and others, (2017) 10 SCC 1 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 challenges. Be it stated, the Court was
dealing with privacy as a matter of fundamental right.
40. In Supreme Court
Advocates-on-Record Association and others v. Union of India, (1993) 4 SCC 441 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 convey the message of the Constitution which is intrinsic to the Constitution.
I.1 Interpretation of fundamental rights
41. While adverting to
the concept of the duty of the Court, we shall focus on the interpretative
process adopted by this Court in respect of fundamental rights. In the initial
years, after the Constitution came into force, the Court viewed each
fundamental right as separate and distinct. That apart, the rule of restrictive
interpretation was applied. The contours were narrow and limited. It is
noticeable from the decision in A.K. Gopalan
v. State of
Madras, AIR 1950 SC 27 : 1950 SCR 88. The perception changed when the Court focussed on the actual
impairment caused by the law rather than the literal validity of the law as has
been observed in I.R. Coelho (supra). I.R. Coelho referred to Rustom
Cavasjee Cooper v. Union of
India, (1970) 1 SCC 248 and understood that the view rendered therein disapproved the view
point in A.K. Gopalan and reflected upon the
concept of impact doctrine in Sakal Papers
(P) Ltd. v. Union of India, (1962) 3 SCR 842 : AIR 1962 SC 305. The Court, after referring to Sambhu Nath
Sarkar v. State of West Bengal and others, (1974) 1 SCR 1 : (1973) 1 SCC 856; Haradhan Saha
v. The State of West
Bengal and others, (1975) 3 SCC 198 : (1975) 1 SCR 778 and Khudiram Das v. State of West
Bengal and others, (1975) 2 SCR 832 : (1975) 2 SCC 81 reproduced a passage from Maneka Gandhi
v. Union of India and another, (1978) 1 SCC 248 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 fundamental rights has
been considerably widened. In that context, reference had been made to M. Nagaraj
and others v. Union of
India and others, (2006) 8 SCC 212 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 another, (2001) 7 SCC 231 while deciding a writ of quo warranto, the
majority ruled that if a non-legislator could be sworn in as the Chief Minister under Article
164 of the Constitution, then he must satisfy the qualification of membership
of a legislator as postulated under Article 173. I.R. Coelho (supra), while deciding the
doctrine of implied limitation and referring to various opinions stated in Kesavananda
Bharati (supra) and Minerva Mills Ltd. and others v.
Union of India and others, (1980) 3 SCC 625 ruled that the principle of implied
limitation is attracted to the sphere of constitutional interpretation.
45. In Manoj Narula
v. Union of India, (2014) 9 SCC 1 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 of eligibility and would
amount to prescribing an eligibility qualification and adding a
disqualification which has not been stipulated in the Constitution. In the
absence of any constitutional prohibition or statutory embargo, such disqualification
cannot be read into Article 75(1) or Article 164(1) of the Constitution.
46. Another aspect that was
highlighted in Manoj Narula (supra) pertained to
constitutional implication and it was observed that the said principle of
implication is fundamentally founded on rational inference of an idea from the
words used in the text. The concept of legitimate deduction is always recognised.
In Melbourne Corporation v. Commonwealth, [1947] 74 CLR 31 (Aust) Dixon, J. opined that
constitutional implication should be based on considerations which are
compelling. Mason, C.J., in Australian
Capital Television Pty. Limited and others and the State of New South Wales v.
The Commonwealth of Australia and another, [1992] 177 CLR 106 (Aust) [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 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 others, (2006) 7 SCC 1 a Constitution Bench, while interpreting
Article 80 of the Constitution of India, relied upon a passage from G. Narayanaswami
v. G. Pannerselvam and others, (1972) 3 SCC 717. 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 meaning‖ or ―literal‖ interpretation, which
remains ―the primary rule‖, has also to be kept in
mind. In the context of Article 80(4) of the Constitution in the context of
―the representatives of each State‖, the Court repelled the
argument that it is inherent in the expression ―representative‖ that he/she must first necessarily be an elector in the State. It
ruled that the ―representative‖ of the State is the
person chosen by the electors who can be any person who, in the opinion of the
electors, is fit to represent them.
48. The Court, in Union of
India v. Sankalchand Himatlal Sheth and another, (1977) 4 SCC 193 ruled that it is to be
remembered that when the Court interprets a constitutional provision, it
breathes life into the inert words used in the founding document. The problem
before the Constitutional Court is not a mere verbal problem. ―Literalness‖, observed Frankfurter, J., ―may strangle meaning‖ and he went on to add in Massachusetts
Bonding & Insurance Co. v. United States, 352 U.S. 128 (1956) 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 words and a dictionary, but by considering the
purpose and intendment of the framers as gathered from the context and the setting
in which the words occur. The difficulty of gathering the true intent of the
law giver from the words used in the statute was expressed by Holmes, J. in a
striking and epigrammatic fashion when he said:
―Ideas are not often hard but
the words are the devil‖ (R.E. Megarry, ‗A Second Miscellany-at-Law‘ (Stevens, London, 1973), p.152) 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 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 "division of labours"
among members for considering legislation....".
52. Woodrow Wilson, the 28th President of the United
States, was quoted as saying in 1885 that ―it is not far from the truth to say
that Congress in session is Congress on public exhibition, whilst Congress in
its Committee rooms is Congress at work‖ Woodrow Wilson, ―Congressional Government‖, 1885, quoted in the JCOC Final Report, (Baltimore, the Johns Hopkins University Press, 1981) p.69. This is because most of the work of Congress
was referred to committees for detailed review to inform debate on the floor of
the House.
53. Former U.S.
Representative James Shannon commented during a 1995 conference on the role of
committees in Malawi's legislature:-
"Around the world there is a trend to
move toward more reliance on committees to conduct the work of parliament, and
the greatest reason for this trend is a concern for efficiency. The demands on
a modern parliament are numerous and it is not possible for the whole house to
consider all the details necessary for performing the proper function of a
legislature." (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).
54. Lord Campion in his book59 has explained the dual
sense in which the word "Committee" was used in old parliamentary language:-
"In early days it is not the body as a whole but each single member that
is meant by the term, 'the body is described as the committee' to whom the bill
is committed. The formation of the terms is the same as that of any other
English word which denotes the recipient in a bilateral relation of obligation,
such as trustee, lessee, nominee, appointee. The body is usually referred to in
the old authorities as 'committee'. But it was not long before it became usual
to describe the totality of those to whom a bill was referred as a 'committee'
in an abstract sense. In both the English word emphasis the idea of delegation
and not that of representation in which the German word aussehuss
expresses."
55. The utility of a Committee has been succinctly expressed
by Lord Beaconsfield ("An Introduction to the Procedure of House of Commons" 60 Lord Beaconsfield in Hansard, 3rd Series, Vol.235 (1877) p. 1478):-
"I do not think there is anyone who more values the labour
of parliamentary committees than myself. They obtain for the country an extraordinary
mass of valuable information, which probably would not otherwise be had or
available, and formed, as they necessarily are, of chosen men their reports are
pregnant with prudent and sagacious suggestion for the improvements of the
administration of affairs."
56. The importance of Committees in today's
democracy has further been detailed thus ("Growth of Committee System in the Central Legislature of India 1920-1947"):-
"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 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 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 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 sub55 legislative organizations
each consisting of small number of Members of Parliament from the House of
Commons, or peers from the House of Lords, or a mix of both appointed to deal
with particular areas or issues; most are made up of members of the Commons. (See http://www.parliament.uk/business/committees/ 63 Id.). The majority of
parliamentary committees are Select Committees which are designed to:-
1.
Superintend the work of departments and agencies;
2. Examine topical issues
affecting the country or individual regions; and
3. Review and advise on the
procedures, workings and rules of the House.
63. The other committees such
as ―Departmental Select Committees‖ are designed to oversee
and examine the work of individual government departments, ―Topical Select Committee‖ examines contemporary issues of significance and ―Internal Select
Committees‖ have responsibility with respect to the
day-to-day running of Parliament.63 It helps the Parliament to have a very
powerful network of committees to ensure executive accountability.
K.2 Parliamentary Committees in United
States of America
64. Parliamentary Committees are essential to the effective operation
of the Parliament in United States. Due to the high volume and complexity of
its work, the Senate divides its tasks among 20 permanent committees, 4 joint
committees and occasionally temporary committees. Although the Senate committee
system is similar to that of the House of Representatives, it has its own
guidelines within which each committee adopts its own rules. This creates
considerable variation among the panels. The chair of each committee and a majority
of its members represent the majority party. The chair primarily controls a
committee‘s business. Each party assigns its own members to committees, and
each committee distributes its members among its sub-committees. (See https://www.britannica.com/topic/Congress-of-the-United-States for details.) 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 review, gather and
evaluate information and recommend courses of action to their parent body.
(ii) The Committee membership enables members
to develop specialized knowledge of the matters under their jurisdiction.
(iii) Standing committees generally have
legislative jurisdiction. Sub-committees handle specific areas of the committee‘s
work. Select and joint committees generally handle oversight or housekeeping
responsibilities. (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.)
(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 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 Senate. (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/). 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 evidence from expert
groups or individuals (See https://www.aph.gov.au/Parliamentary_Business/Committees). 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 Members to be better
informed about community views but in simply undertaking an inquiry, the
committee may promote public debate on the subject at issue. The all-party
composition of most committees and their propensity to operate across party lines
are important features.68 This bipartisan approach generally manifests itself throughout the
conduct of inquiries and the drawing up of conclusions. Committees oversee and
scrutinise the Executive and contribute towards a better-informed administration
and government policy-making process. 69 In respect of their formal proceedings,
committees are microcosms and extensions of the Houses themselves, limited in
their power of inquiry by the extent of the authority delegated to them and governed
for the most part in their proceedings by procedures and practices which
reflect those which prevail in the House by which they were appointed.
L. Parliamentary Committees in India
69. Having reflected upon
the parliamentary committees and their role in other democracies, we may now
proceed to deal with the parliamentary committees in India. The long freedom struggle
in India was not just a movement to achieve freedom 68 Id.
69 Id. 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 : 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 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 Committee which is appointed or elected by the House or nominated
by the Speaker and which works under the direction of the Speaker and presents
its report to the House or to the Speaker.
74. Founded on English
traditions, the Indian Parliament‘s committee system has a vital role in the
parliamentary democracy. Generally speaking, the Parliamentary committees are
of two kinds; standing committees and ad hoc committees. Standing Committees are permanent and regular
committees which are constituted from time to time in pursuance of the provisions
of an Act of Parliament or Rules of Procedure and Conduct of Business in Lok
Sabha. The work of these Committees is of continuous nature. The Financial
Committees, Department Related Standing Committees (DRSCs) and some other
Committees too come under the category of Standing Committees. The ad hoc
Committees are appointed for specific purposes as and when the need arises and
they cease to exist as soon as they complete the work assigned to them. (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.) The parliamentary
committees are invariably larger in size and are recommendatory in nature. Be
it stated, there are 24 Department Related Standing Committees covering under their jurisdiction all the
Ministries/Departments of the Government of India. Each of these Committees
consists of 31 Members - 21 from Lok Sabha and 10 from Rajya Sabha to be
nominated by the Speaker, Lok Sabha and the Chairman, Rajya Sabha,
respectively. The term of office of these Committees does not exceed one year.
L.1 Rules of Procedure and Conduct of
Business in Lok Sabha
75. A close look at the functioning of these committees discloses
the fact that the committee system is designed to enlighten Members of
Parliament (MPs) on the whole range of governmental action including defence,
external affairs, industry and commerce, agriculture, health and finance. They offer
opportunities to the members of the Parliament to realize and comprehend the
dynamics of democracy. The members of Parliament receive information about
parliamentary workings as well as perspective on India‘s strengths and
weaknesses through the detailed studies undertaken by standing committees. Indian
parliamentary committees are a huge basin of information which are made
available to the Members of Parliament in order to educate themselves and
contribute ideas to strengthen the parliamentary system and improve 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; (c) Houses Committee i.e.
the committees relating to the day to day business of the House; (d) Enquiry Committee; (e) Scrutiny Committees; (f) Service Committees; 34.
A list of Standing Committees of Lok Sabha along with its membership is
reproduced as under: Name of Committee Number of Members Business Advisory
Committee 15 Committee of Privileges 15 Committee on Absence of Members from
the Sittings of the House of Committee on Empowerment of Women Committee on
Estimates 30 Committee on Government Assurances Committee on Papers Laid on the
Table Committee on Petitions 15 Committee on Private Members Bills and
Resolutions Committee on Public Accounts 22 Committee on Public Undertakings 22
Committee on Subordinate Legislation Committee on the Welfare of Scheduled
Castes and Scheduled Tribes House Committee 12 Joint Committee on Offices of
Profit 15 Joint Committee on Salaries and Allowances of Members of Parliament Library
Committee 9 Rules Committee 15 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 recommitted 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 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
(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.‖‖
The aforesaid rule makes it quite vivid that the report of the Committee
is treated as an advice given by the Committee and it is meant for the
Parliament.
M. Parliamentary privilege
82. Black's Law
Dictionary, 6th Ed., 1990, p. 1197, defines ―privilege‖ as "a particular and peculiar benefit or advantage enjoyed
by a person, company, or class, beyond the common advantages of other citizens.
An exceptional or extraordinary power or exemption. A peculiar right,
advantage, exemption, power, franchise, or immunity held by a person or class,
not generally possessed by others."
83. Parliamentary privilege is defined
by author Erskine May in Erskine May's Treatise on the Law, Privileges,
Proceedings and Usage of Parliament:-
―Parliamentary privilege is the sum of
the peculiar rights enjoyed by each House collectively... and by Members of
each House individually, without which they could not discharge their
functions, and which exceed those possessed by other bodies or individuals.
Thus privilege, though part of the law of the land, is to a certain extent an
exemption from the general law.‖ May, 22nd ed., p. 65. For other definitions of privilege, see Maingot, 2nd ed., pp. 12-3.
84. The concept of
Parliamentary Privilege has its origin in Westminster, Britain in the 17th
century with the passage of the Bill of Rights in 1689.
Article IX of the Bill of Rights, which laid down the concept of Parliamentary
Privilege, reads as under:-
―That the freedom of speech and debates or proceedings
in Parliament ought not to be impeached or questioned in any court or place out
of Parliament.‖
85. Parliamentary Privilege was introduced to
prevent any undue interference in the working of the Parliament and thereby enable
the members of the Parliament to function effectively and efficiently without
unreasonable impediment. Till date, Parliamentary Privilege remains an
important feature in any parliamentary democracy. The concept of Parliamentary
Privilege requires a balancing act of two opposite arguments as noted by Thomas
Erskine May:-
―On the one hand, the privileges of Parliament are rights
'absolutely necessary for the due execution of its powers'; and on the other,
the privilege of Parliament granted in regard of public service 'must not be
used for the danger of the commonwealth.‖ Erskine May 24th Edition Pg. 209
M.1 Parliamentary
privilege under the Indian Constitution
86. Having dealt with the role of the
Parliamentary Standing Committee or Parliamentary Committees, it is necessary
to understand the status of Parliamentary Committee and the privileges it
enjoys in the Indian context. Article 105 of the 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 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 State‖. Therefore, the
interpretation of one of these articles would invariably apply to the other and
vice versa.
89. In U.P. Assembly
case [Special Reference No. 1 of 1964], AIR 1965 SC 745 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 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 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
Constitutionmakers, the Court observed, must have thought that the Legislatures
would take some time to make laws in respect of 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 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 proceedings inside the legislative chamber if his case is
that the said proceedings suffer not from mere irregularity of procedure, but
from an illegality. If the impugned procedure is illegal and unconstitutional,
it would be open to be scrutinised in a court of law, though such scrutiny is
prohibited if the complaint against the procedure is no more than this that the
procedure was irregular. That again is another indication which may afford some
assistance in construing the scope and extent of the powers conferred on the
House by Article 194(3).
94. In Raja Ram Pal
v. Hon’ble Speaker, Lok Sabha and others, (2007) 3 SCC 184 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 pressure and allows them
freedom to function within their domain regard being had to the idea of
sustenance of legislative functionalism. The aforesaid protection is absolute.
M.2 Judicial review of parliamentary
proceedings and its privilege
95. Commenting upon the effect of
parliamentary privilege, the House of Lords in the case of Hamilton v.
Al Fayed, [2001] 1 AC 395 at 407 pointed out that the normal impact of parliamentary privilege is
to prevent the Court from entertaining any evidence, crossexamination or
submissions which challenge the veracity or propriety of anything done in the
course of parliamentary proceedings.
96. With regard to the role
of the Court in the context of parliamentary privileges, Lord Brougham, in the
case of Wellesley v. Duke of Beaufort, [1831] Eng R 809 : (1831) 2 Russ & My 639: (1831) 39 ER 538 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.
97. The 1999 UK Joint Committee report offers
a useful analysis of the respective roles to be played by the Parliament and
the Courts in advancing the law of parliamentary privilege:-
"There may be
good sense sometimes in leaving well alone when problems have not arisen in
practice. Seeking to clarify and define boundaries may
stir up disputes where currently none exists. But Parliament is not always well
advised to adopt a passive stance. There is merit, in the particularly important
areas of parliamentary privilege, in making the boundaries reasonably clear
before difficulties arise. Nowadays people are increasingly vigorous in their
efforts to obtain redress for perceived wrongs. In their court cases they press
expansively in areas where the limits of the courts' jurisdiction are not
clear. Faced with demarcation problems in this jurisdictional no-man's land,
the judges perforce must determine the position of the boundary. If Parliament
does not act, the courts may find themselves compelled to do so."
98. With
respect to the position of parliamentary privileges and the role of the Courts
in Canada, the Supreme Court of Canada in the case of New Brunswick
Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319 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 the power to determine if the privilege claimed is necessary to
the capacity of the legislature to function, but have no power to review the
correctness of a particular decision made pursuant to the privilege. In the
case of Harvey v. New Brunswick (Attorney General), [1996] 2 SCR 876 the Court has held that
in order to prevent abuses in the guise of privilege from trumping legitimate
Charter interests, the Courts must inquire into the legitimacy of a claim of parliamentary
privilege.
99. With respect to the
review of parliamentary privilege, Lord Coleridge, C.J., in the case of Bradlaugh v.
Gossett, (1884) 12 QBD 271 (D) 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.
100. Sir William
Holdsworth in his book80 has also made the following observations with regard to review of
Parliamentary privileges:- 'There are two maxims or principles which govern this
subject. The first tells us that 'Privilege of Parliament is part of the law of
the land;' the second that 'Each House is the judge of its own privileges'.
Now at first sight it may seem that these
maxims are contradictory. If privilege of Parliament is part of the law of the
land its meaning and extent must be interpreted by the courts, just like any
other part of the law; and therefore, neither House can add to its privileges
by its own resolution, any more than it can add to any other part of the law by
such a resolution.
On the other hand if it is true that each
House is the sole judge of its own privileges, it might seem that each House
was the sole judge as to whether or no it had got a privilege, and so could add
to its privileges by its own resolution. This apparent contradiction is solved
if the proper application of these two maxims is attended to. The first maxim applies
to cases like Ashby v. White and Stockdale v. Hansard (A), in which the
question al issue was the existence of a privilege claimed by the House.
This is a matter of law which the courts must decide,
without paying any attention to a resolution of the House on the subject. The
second maxim applies to cases like that of the Sheriff of Middlesex (B), and
Bradlaugh v. Gosset (D), in which an attempt was made to question, not the
existence but the mode of user of an undoubted privilege. On this matter the
courts will not interfere because each House is the sole judge of the question
whether, 80 "A History of English
Law" when or how it will use one of its undoubted privileges."
101.
At this juncture, it is fruitful to refer to Articles 121 and 122 of the
Constitution. They read as follows:-
“121. Restriction on discussion in
Parliament: No discussions shall take place in Parliament with respect to
the conduct of any Judge of the Supreme Court or of a High Court in the
discharge of his duties expect upon a motion for presenting an address to the
President praying for the removal of the Judge as hereinafter provided.
122. Courts not to inquire into
proceedings of Parliament:- (1) The validity of any proceedings in
Parliament shall not be called in question on the ground of any alleged
irregularity of procedure.
(2) No officer or member of Parliament in whom
powers are vested by or under this Constitution for regulating procedure or the
conduct of business, or for maintaining order, in Parliament shall be subject to
the jurisdiction of any court in respect of the exercise by him of those
powers.‖
102. As we perceive, the aforesaid Articles are extremely significant
as they are really meant to state the restrictions imposed by the Constitution
on both the institutions.
103. In Raja Ram Pal (supra), a Constitution
Bench, after 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 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 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 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;
(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, noncompliance with rules of natural justice and perversity.‖
[Emphasis supplied]
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 made by Members of Parliament in
Parliament and inference drawn from facts and findings of fact and law and,
therefore, the Court is required to pose the question as to which of the above aspects
of the Parliamentary Committee Reports can be placed reliance upon. The
contention is structured on the foundation that committee reports are
admissible in evidence and in public interest litigation in exercise of power
under Article 32 for interpreting the legislation and directing the
implementation of constitutional or statutory obligation by the executive.
N. Reliance on parliamentary proceedings
as external aids
107. A Constitution Bench in R.S. Nayak v.
A.R. Antulay, (1984) 2 SCC 183 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 a legislation and the
object sought to be achieved, etc. which the Parliament held the luxury of
availing should not be denied to the Court whose primary function is to give
effect to the real intention of the legislature in enacting a statute. The
Court was of the view that such a denial would deprive the Court of a substantial
and illuminating aid to construction and, therefore, the Court decided to
depart from the earlier decisions and held that reports of committees which
preceded the enactment of a law, reports of Joint Parliamentary Committees and
a report of a commission set up for collecting information can be referred to
as external aids of construction.
108. In this regard, we may
also usefully state that the speeches of Ministers in Parliament are referred
to on certain occasions for limited purposes. A Constitution Bench in State of West
Bengal v. Union of India, AIR 1963 SC 1241 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 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 another, (1981) 4 SCC 173 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 only in the western
countries but also in India as in the exercise of interpretation of a statute,
everything which is logically relevant should be admitted. Thereafter, the
Court acknowledged a few decisions of this Court where speeches made by the Finance
Minister were relied upon by the Court for the purpose of ascertaining the
reason for introducing a particular clause. Similar references have also been made in Dr. Ramesh Yeshwant
Prabhoo v. Prabhakar Kashinath Kunte and others, (1996) 1 SCC 130. That apart,
parliamentary debates have also been referred to appreciate the context
relating to the construction of a statute in Novartis AG
v. Union of India and others, (2013) 6 SCC 1; State of Madhya
Pradesh and another v. Dadabhoy’s New Chirimiri Ponri Hill Colliery Co. Pvt.
Ltd., (1972) 1 SCC 298; Union of India v. Steel Stock
Holders Syndicate, Poona, (1976) 3 SCC 108; K.P. Varghese (supra), and Surana Steels
Pvt. Ltd. v. Dy. Commissioner of Income Tax and others, (1999) 4 SCC 306.
110. In Ashoka Kumar
Thakur v. Union of India and others, (2008) 6 SCC 1 this Court, after referring to Crawford on
Statutory Construction, observed that the Rule of Exclusion followed in the British Courts has been
criticized by jurists as artificial and there is a strong case for whittling
down the said rule. The Court was of the view that the trend of academic
opinion and practice in the European system suggests that the interpretation of
a statute being an exercise in the ascertainment of meaning, everything which
is logically relevant should be admissible which implies that although such
extrinsic materials shall not be decisive, yet they should at least be
admissible. Further, the Court took note of the fact that there is authority to
suggest that resort should be had to these extrinsic materials only in case of
incongruities and ambiguities. Where the meaning of the words in a statute is plain,
then the language prevails, but in case of obscurity or lack of harmony with
other provisions and in other special circumstances, it may be legitimate to
take external assistance to determine the object of the provisions, the
mischief sought to be remedied, the social context, the words of the authors
and other allied matters.
111. In Additional
Commissioner of Income Tax, Gujarat v. Surat Art
Silk Cloth Manufacturers’ Association, Surat, (1980) 2 SCC 31 this Court held:-
"It is legitimate to
look at the state of law prevailing leading to the legislation so as to see
what was the mischief at which the Act was directed. This Court has on many
occasions taken judicial notice of such matters as the reports of parliamentary
committees, and of such other facts as must be assumed to have been within the
contemplation of the legislature when the Acts in question were passed.‖
112. We have referred to these authorities to highlight that the reports
or speeches have been referred to or not referred to for the purposes indicated
therein and when the meaning of a statute is not clear or ambiguous, the
circumstances that led to the passing of the legislation can be looked into in
order to ascertain the intention of the legislature. It is because the reports assume
significance and become relevant because they precede the formative process of
a legislation.
113. In Pepper v.
Hart, [1992] UKHL 3 : [1993] AC 593 : [1992] 3 WLR 1032 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.‖
114. The Supreme Court of
Canada in R. v. Vasil, [1981] 1 SCR 469, 121 D.L.R. (3d) 41 relied on parliamentary
materials to interpret the phrase ―unlawful object‖ in Section 212(c) of the Canadian Criminal Code. Speaking for the
majority, Justice Lamer (as he then was) said:-
―Reference to Hansard is not
usually advisable. However, as Canada has, at the time of
codification, subject to few changes, adopted the English Draft Code of 1878,
it is relevant to know whether Canada did so in relation to the various
sections for the reasons advanced by the English Commissioners or for reasons
of its own. Indeed, a reading of Sir John Thompson's comments
in Hansard of April 12, 1892, (House of Commons Debates, Dominion of Canada,
Session 1892, vol. I, at pp. 1378-85) very clearly confirms that all that
relates to murder was taken directly from the English Draft Code of 1878. Sir
John Thompson explained the proposed murder sections by frequently quoting
verbatim the reasons given by the Royal Commissioners in Great Britain, and it
is evident that Canada adopted not only the British Commissioners' proposed
sections but also their reasons.‖
The Canadian
authorities, as is noticeable from Re Anti- Inflation
Act (Canada), [1976] 2 SCR 373, 68 D.L.R. (3d) 452 have relaxed the exclusionary rule.
115. In Dharam Dutt
and others v. Union of India and others, (2004) 1 SCC 712 the Court took note of the three
Parliamentary Standing Committees appointed at different points of time which
had 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, 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 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.
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 subsections 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 Courts to
take judicial notice of the said facts. Section 57, subsection (4) of the
Evidence Act casts an obligation on the Courts to take judicial notice of the
course of proceedings of Parliament.
122. This Court, in Sole Trustee
Lok Shikshana Trust v. Commissioner
of Income Tax, Mysore, (1976) 1 SCC 254 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 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 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 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 adjudge
the lis on the factual score of
the report is to be negatived.
P. The decisions in which parliamentary
standing committee report/s have been referred to
128. Before we proceed to
record our conclusions, it is necessary to allude to various authorities cited
by the petitioners herein highlighting the occasions where this Court has
referred to and taken note of various Parliamentary Committee reports. In Catering
Cleaners of Southern Railway v. Union of India and another, (1987) 1 SCC 700 the catering cleaners of
the Southern Railway filed a writ petition praying for abolition of the
contract labour system and their absorption as direct employees of the
principal employer, viz., the Southern Railway. This Court referred to the Parliamentary
Committee Report under the Chairmanship of K.P. Tewari which had dealt with the question of
abolishing the contract labour system and regularizing the services of the catering
cleaners. The Committee had, inter alia, recommended that the
government should consider direct employment of catering cleaners by the
Railway Administration to avoid their exploitation.
129. In State of
Maharashtra v. Milind and others, (2001) 1 SCC 4 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 others, (2002) 7 SCC 368 the education policy framed by NCERT was
challenged by the petitioners. This Court while dealing with the said issue, referred,
in extensio, to the Parliamentary
committee report which had made several recommendations in this regard. After so referring
to the report, the Court was of the view that if the recommendations made by
the Parliamentary Committee are accepted by the NCERT and are sought to be
implemented, it cannot be stated that its action is arbitrary or unjustified.
131. In M.C. Mehta v.
Union of India and others, (2017) 7 SCC 243 this Court referred to the report of the
Standing Committee of Parliament on Petroleum & Natural Gas which expressed
concern over the phenomenal rise of air pollution and made some recommendations.
The Court, in this case, made it clear that it had mentioned the report only
for indicating that the Government was and is proactively supporting the
reduction of vehicular pollution by controlling the emission norms and
complying with the Bharat Stage standards.
132. In Lal Babu
Priyadarshi v. Amritpal Singh, (2015) 16 SCC 795 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 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 others, (1995) 5 SCC 27; Modern Dental
College and Research Centre and others v. State of Madhya Pradesh and others, (2016) 7 SCC 353 and Krishan Lal
Gera v. State of Haryana and others, (2011) 10 SCC 529 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 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 decision of a Court is progressive being in
accord with the theory of judicial engagement, the approach would be to ensure
the proper discharge of duty by the Constitutional Courts so as to secure the
inalienable rights of the citizens recognized by the Constitution. A
Constitutional Court cannot abdicate its duty to allow injustice to get any
space or not allow real space to a principle that has certain range of
acceptability. Stradford C.J., speaking the tone and tenor in Jajbhay v
Cassim, 1939 AD 537 at p 542 has observed:-
"Now the Roman-Dutch law, which we must apply,
is a living system capable of growth and development to allow adaptation to the
increasing complexities and activities of modern civilised life. The instruments of that development are our
own Courts of law. In saying that, of course, I do not mean that it is
permissible for a Court of law to alter the law; its function is to elucidate,
expound and apply the law. But it would be idle to deny that in the process of
the exercise of those functions rules of law are slowly and beneficially
evolved."
136. In Miranda v. Arizona, 384 U.S. 436 (1966) 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 the Court has exceeded
its powers or that the Court is wrong or unwise in its present reinterpretation
of the Fifth Amendment. It does, however, underscore the obvious -- that the
Court has not discovered or found the law in making today's decision, nor has
it derived it from some irrefutable sources; what it has done is to make new
law and new public policy in much the same way that it has in the course of interpreting
other great clauses of the Constitution. This is what the Court historically has done.
Indeed, it is what it must do, and will continue to do until and unless there
is some fundamental change in the constitutional distribution of governmental powers."
137. In the Indian context, this Court has recognized the comprehensive,
progressive and engaging role of Constitutional Courts in a catena of judgments
starting from Lakshmi Kant Pandey v. Union of
India, (1984) 2 SCC 244; Vishaka and others v. State of Rajasthan
and others, (1997) 6 SCC 241; Prakash Singh and others v. Union of
India and others, (2006) 8 SCC 1; Common Cause (A Regd. Society) v. Union of
India, 2018 (4) SCALE 1 and Shakti Vahini v. Union of India
and others, 2018 (5) SCALE 51. 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 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:-
(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 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.
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