# KALPANA MEHTA AND OTHERS v. UNION OF INDIA AND OTHERS

- **Citation:** [2018] 4 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2018-05-09
- **Bench:** Dipak Misra, A. M. Khanwilkar, A. K. Sikri, Dr. D. Y. Chandrachud, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kalpana-mehta-and-others-v-union-of-india-and-others-32901
- **Pages:** 254

## Headnote

Public Interest Litigation:
Constitution of India - Arts. 32 and 136 - Report of
Parliamentary Standing Committee - Reliance upon - Parliamentary
proceeding and its privilege - Scope of judicial review -
Irregularities in the clinical trials for Human Papilloma Virus (HPV)
vaccine - Justifiability of action taken by Drugs Controller General
of India and Indian Council of Medical Research pertaining to
approval of vaccine - On facts, HPV vaccine manufactured by
pharmaceutical company, for preventing cervical cancer in women
- Experimentation of the vaccine as an immunisation by the
Government of Gujarat and Andhra Pradesh on young adolescent
girls - Untimely death of the girls - Irregularities and health risk of
HPV vaccine pointed out by health activist - Appointment of
Parliamentary Standing Committee to enquire into the alleged
irregularities - 72nd and 81st Standing Committee Report indicating
various shortcomings and lapses of the Government Departments,
ICMR, NGO and Pharmaceutical Companies - Thereafter filing of
writ petition by activist challenging irregularities in the clinical trials
- Reliance placed on the report of the Parliamentary Standing
Committee by petitioners - Case of Union of India that the Reports
could neither be looked into nor relied by this Court - Questions
framed by two-Judge Bench for reference to Constitution Benchwhether in a litigation filed before this Court either u/Arts. 32 or
136, the Court can refer to and place reliance upon the report of
the Parliamentary Standing Committee; and whether such a Report
can be looked at for the purpose of reference - Held: Per curiam:
In a litigation filed either u/Arts. 32 or 136, judicial notice can be
taken of the Parliamentary Standing Committee report, however,
the report cannot be impinged or challenged in a court of law.
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SUPREME COURT REPORTS
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Arts. 32, 136 and 105 - Report of Parliamentary Standing
Committee indicating irregularities in the clinical trials for Human
Papilloma Virus (HPV) vaccine - Reference to and reliance upon
by this Court - Held: Per Dipak Misra, CJI:(For himself and
Khanwilkar, J.): Parliamentary Standing Committee report can be
taken aid of for the interpretation of a statutory provision - Judicial
notice can be taken of the Parliamentary Standing Committee report
u/s. 57(4) of the Evidence Act and it is admissible u/s 74 of the Act
- In a litigation u/Art. 32 or Art. 136, this Court can take on record
the report of the Parliamentary Standing Committee, however, it
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 -
Report being in the public domain can invite fair comments and
criticism from the citizens - Per Chandrachud, J. (for himself and
Sikri, J.): Reliance upon the report of Parliamentary Standing
Committee can be placed in proceedings u/Art. 32 or Art. 136 - On
publication of the report, its reference in the course of judicial
proceedings would not constitute a breach of parliamentary privilege
- Validity of the report cannot be called into question in the court -
No Member of Parliament or person can be made liable for what is
stated in the course of the proceedings before a Parliamentary
Committee - When matter before the court assumes a contentious
character, a finding of fact by the court must be premised on the
evidence adduced in the judicial proceeding - (Per Ashok Bhushan,
J): Reports submitted by Members of Parliament fully covered by
protection extended u/Art. 105 and they cannot be held liable for
anything said by them in Parliament or in any committee - Publication
of the reports not being only permitted, but also are being
encouraged by the Parliament and on publication it can be used by
the public in general - Judicial notice can be taken of the course
of procee

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[2018] 4 S.C.R. 1
KALPANA MEHTA AND OTHERS
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No. 558 of 2012)
MAY 09, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR, A. K. SIKRI,
DR. D. Y. CHANDRACHUD AND ASHOK BHUSHAN, JJ.]
Public Interest Litigation:
Constitution of India - Arts. 32 and 136 - Report of
Parliamentary Standing Committee - Reliance upon - Parliamentary
proceeding and its privilege - Scope of judicial review -
Irregularities in the clinical trials for Human Papilloma Virus (HPV)
vaccine - Justifiability of action taken by Drugs Controller General
of India and Indian Council of Medical Research pertaining to
approval of vaccine - On facts, HPV vaccine manufactured by
pharmaceutical company, for preventing cervical cancer in women
- Experimentation of the vaccine as an immunisation by the
Government of Gujarat and Andhra Pradesh on young adolescent
girls - Untimely death of the girls - Irregularities and health risk of
HPV vaccine pointed out by health activist - Appointment of
Parliamentary Standing Committee to enquire into the alleged
irregularities - 72nd and 81st Standing Committee Report indicating
various shortcomings and lapses of the Government Departments,
ICMR, NGO and Pharmaceutical Companies - Thereafter filing of
writ petition by activist challenging irregularities in the clinical trials
- Reliance placed on the report of the Parliamentary Standing
Committee by petitioners - Case of Union of India that the Reports
could neither be looked into nor relied by this Court - Questions
framed by two-Judge Bench for reference to Constitution Benchwhether in a litigation filed before this Court either u/Arts. 32 or
136, the Court can refer to and place reliance upon the report of
the Parliamentary Standing Committee; and whether such a Report
can be looked at for the purpose of reference - Held: Per curiam:
In a litigation filed either u/Arts. 32 or 136, judicial notice can be
taken of the Parliamentary Standing Committee report, however,
the report cannot be impinged or challenged in a court of law.
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Arts. 32, 136 and 105 - Report of Parliamentary Standing
Committee indicating irregularities in the clinical trials for Human
Papilloma Virus (HPV) vaccine - Reference to and reliance upon
by this Court - Held: Per Dipak Misra, CJI:(For himself and
Khanwilkar, J.): Parliamentary Standing Committee report can be
taken aid of for the interpretation of a statutory provision - Judicial
notice can be taken of the Parliamentary Standing Committee report
u/s. 57(4) of the Evidence Act and it is admissible u/s 74 of the Act
- In a litigation u/Art. 32 or Art. 136, this Court can take on record
the report of the Parliamentary Standing Committee, however, it
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 -
Report being in the public domain can invite fair comments and
criticism from the citizens - Per Chandrachud, J. (for himself and
Sikri, J.): Reliance upon the report of Parliamentary Standing
Committee can be placed in proceedings u/Art. 32 or Art. 136 - On
publication of the report, its reference in the course of judicial
proceedings would not constitute a breach of parliamentary privilege
- Validity of the report cannot be called into question in the court -
No Member of Parliament or person can be made liable for what is
stated in the course of the proceedings before a Parliamentary
Committee - When matter before the court assumes a contentious
character, a finding of fact by the court must be premised on the
evidence adduced in the judicial proceeding - (Per Ashok Bhushan,
J): Reports submitted by Members of Parliament fully covered by
protection extended u/Art. 105 and they cannot be held liable for
anything said by them in Parliament or in any committee - Publication
of the reports not being only permitted, but also are being
encouraged by the Parliament and on publication it can be used by
the public in general - Judicial notice can be taken of the course
of proceedings of Parliament and the Legislature u/s. 57(4) -
Parliamentary Committee Reports can be relied on for noticing an
event or history however, no party can be allowed to 'question' or
'impeach' report of Parliamentary Committee - Admissibility of a
Parliamentary Committee Report in evidence does not mean that
facts stated in the Report stand proved - When issues of facts come
before the Court for adjudication, the Court is to decide the issues
on the basis of evidence and materials brought before it.
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Arts. 105, 118, 194, 121, 122 and 212 - Parliamentary
privileges - Powers, privileges, etc of the Houses of Parliament
and of the members and Committees thereof - Publication of the
parliamentary proceedings - Explained.
Parliamentary proceeding and parliamentary privilege -
Scope of judicial review - Explained.
Parliamentary Standing Committees - Role, Relevance and
significance - Explained.
Parliamentary Standing Committees - Parliamentary
Committees in England, United States of America, Canada, Australia
- Role and responsibility - Stated.
Foundational fundamentals - Supremacy of the Constitution,
Constitutional limitations, doctrine of separation of powers, power
of judicial review, interpretation of Constitution, interpretation of
fundamental rights and interpretation of other constitutional
provisions - Analysis of.
Evidence Act, 1872 - s. 57(4) - Parliamentary proceedings -
Applicability of the Act - Facts of which Court must take judicial
notice - Held: Under s. 57(4), the course of proceeding of Parliament
and the Legislature, established under any law are facts of which
judicial notice shall be taken by the court - Parliamentary standing
committee report can be judicially taken note of as such report comes
within the ambit of s. 57(7) - Parliamentary standing committee
report being in the public domain is a public document, thus, it is
admissible u/s. 74 of the Act.
Answering the Reference, the Court
HELD: Per Dipak Misra, CJI:(For himself and Khanwilkar, J.)
1. 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, this Court can take on record the report
of the Parliamentary Standing Committee. However, the report
KALPANA MEHTA v. UNION OF INDIA
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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. [Para 138][121-C-G]
Supremacy of the Constitution
2. 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 derive their authority and jurisdiction form the
Constitution. It is in the exercise of law-making power by the
Constituent Assembly that Constitution has been controlled.
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. 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. [Paras 13, 15,
16][63-B-C; 64-D-E]
Kalpana Mehta and others v. Union of India and others
(2017) 7 SCC 307; Kesavananda Bharati v State of
Kerala [1973] Suppl. SCR 1 : (1973) 4 SCC 225; State
of Rajasthan and others v. Union of India and others
[1978] 1 SCR 1 : (1977) 3 SCC 592; I R Coelho v.
State of Tamil Nadu [2007] 1 SCR 706 : (2007) 2 SCC 1
- referred to.
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Constitutional limitations upon the legislature
3. 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. 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, the terminology-constitutional sovereignty is used.
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. [Paras 17, 20][64-F; 66-EF]
State of West Bengal v. Anwar Ali Sarkar [1952] SCR
284 : AIR 1952 SC 75; K.C. Gajapati Narayan Deo v.
State of Orissa [1954] SCR 1 : AIR 1953 SC 375; Deep
Chand v. State of Uttar Pradesh and others [1959] Supp.
2 SCR 8 : AIR 1959 SC 648; Binoy Viswam v. Union of
India and others (2017) 7 SCC 59 - referred to.
Queen v. Burah (1878) LR 5 I.A. 178; Attorney-General
for Ontario v. Attorney-General for Canada (1912) AC
571 - referred to.
"Constitutional Limitation" by Cooley (Eighth Edn.
Volume I) - referred to.
Doctrine of separation of powers
4. The concept of constitutional limitation is a facet of the
doctrine of separation of powers. There can really be no straitjacket 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
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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. [Para 27][70B-D]
Smt. Indira Nehru Gandhi v. Shri Raj Narain and
another (1975) Supp. SCC 1 : [1976] SCR 347;
Kesavananda Bharati v. State of Kerala [1973] Suppl.
SCR 1 : (1973) 4 SCC 225; State of Himachal Pradesh
v. A Parent of a Student of Medical College, Simla and
others [1985] 3 SCR 676 : (1985) 3 SCC 169; State of
Tamil Nadu v. State of Kerala and another [2014]
12 SCR 875 : (2014) 12 SCC 696; Bhim Singh v. Union
of India and others [2010] 6 SCR 218 : (2010) 5
SCC 538; Mansukhlal Vithaldas Chauhan v. State of
Gujarat [1997] 3 Suppl. SCR 705 : (1997) 7 SCC 622;
Federation of Railway Officers Association and others
v. Union of India 2003 AIR 1344 : (2003) 4 SCC 289
: [2003] 2 SCR 1085; State of Maharashtra and others
v. Raghunath Gajanan Waingankar 2004 AIR 4264 :
[2004] 3 Suppl. SCR 365; Divisional Manager, Aravali
Golf Club and another v. Chander Hass and
another [2007] 12 SCR 1084 : (2008) 1 SCC 683; Asif
Hameed and others v. State of Jammu and Kashmir and
others [1989] 3 SCR 19 : (1989) 2 Suppl. SCC 364; I
R Coelho v. State of Tamil Nadu [2007] 1 SCR 706 :
(2007) 2 SCC 1 - referred to.
Power of judicial review
5.1 Immense responsibility is laid 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. 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
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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.
[Paras 28-29][71-C-E]
5.2 When judicial review is discussed, 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.
[Para 30][71-F-G]
Union of India and another v. Raghubir Singh (Dead)
by LRs. Etc. [1989] 3 SCR 316 : (1989) 2 SCC 754;
S.C. Chandra and others v. State of Jharkhand and
others [2007] 9 SCR 130 : (2007) 8 SCC 279; Suresh
Seth v. Commr., Indore Municipal Corpn. and others
(2005) 13 SCC 287; Supreme Court Employees' Welfare
Association v. Union of India and another [1989]
3 SCR 488 : (1989) 4 SCC 187; Census Commissioner
and others v. R. Krishnamurthy [2014] 11 SCR 463
: (2015) 2 SCC 796; Premium Granites and another v.
State of T.N. and others [1994] 1 SCR 579 : (1994) 2
SCC 691; M.P. Oil Extraction and another v. State of
M.P. and others [1997] 1 Suppl. SCR 671 : (1997) 7
SCC 592; State of Madhya Pradesh v. Narmada Bachao
Andolan and another [2011] 6 SCR 443 : (2011) 7
SCC 639; State of Punjab and others v. Ram Lubhaya
Bagga and others [1998] 1 SCR 1120 : (1998) 4 SCC
117 - referred to.
5.3 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.
KALPANA MEHTA v. UNION OF INDIA
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Constitutional Courts cannot sit in oblivion when fundamental
rights of individuals are at stake. The 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. [Para 33][73-B-D]
Virendra Singh and others v. The State of Uttar
Pradesh 1954 AIR 447 : [1955] SCR 415 - referred
to.
5.4 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 it is said 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. Such an approach
applies with more zeal in case of Article 32 of the Constitution
which has been described as "the very soul of the Constitution -
the very heart of it." 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. [Paras 34-35][73F; 74-A-B]
K.S. Srinivasan v. Union of India 1958 AIR 419 : [1958]
SCR 1295 - referred to.
Interpretation of the Constitution - The nature of duty cast
upon this Court
6. 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
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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. 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. 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.
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. [Paras 3840][75-F-G; 76-B, G; 77-A]
S.R. Bommai and others v. Union of India and others
[1994] 2 SCR 644 : (1994) 3 SCC 1; GVK Industries
Limited and another v. Income Tax Officer and another
[2011] 3 SCR 366 : (2011) 4 SCC 36; Union of India
v. Naveen Jindal and another [2004] 1 SCR 1038 :
(2004) 2 SCC 510; K.S. Puttaswamy and another v.
Union of India and others (2017) 10 SCC 1; Supreme
Court Advocates-on-Record Association and others v.
Union of India [1993] 2 Suppl. SCR 659 : (1993) 4
SCC 441 - referred to.
Interpretation of fundamental rights:
7. 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. The perception changed when
the Court focussed on the actual impairment caused by the law
rather than the literal validity of the law. Constitution and, in
particular, which protects and which entrenches fundamental
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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
fullest measure. [Para 41][77-B-C; 78-C-D]
A.K. Gopalan v. State of Madras AIR 1950 SC 27 :
[1950] SCR 88; I R Coelho v State of Tamil Nadu [2007]
1 SCR 706 : (2007) 2 SCC 1; Rustom Cavasjee Cooper
v. Union of India (1970) 1 SCC 248; Sakal Papers (P)
Ltd. v. Union of India [1962] 3 SCR 842 : AIR 1962
SC 305; 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; Khudiram Das
v. State of West Bengal and others [1975] 2 SCR 832 :
(1975) 2 SCC 81; Maneka Gandhi v. Union of India
and another [1978] 1 SCC 248; M. Nagaraj and others
v. Union of India and others [2006] 7 Suppl. SCR 336
: (2006) 8 SCC 212 - referred to.
Interpretation of other constitutional provisions
8. There has been deliberation 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. The concern is not with the
interpretation of such constitutional provisions which have impact
on the fundamental rights of the citizens. The concern is 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 Arts 105 and 122. [Para 50][81-C-D]
B.R. Kapur v. State of T.N. and another [2001] 3 Suppl.
SCR 191 : (2001) 7 SCC 231; Kesavananda Bharati v.
State of Kerala [1973] Suppl. SCR 1 : (1973) 4 SCC
225; Minerva Mills Ltd. and others v. Union of India
and others [1981] 1 SCR 206 : (1980) 3 SCC 625;
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Manoj Narula v. Union of India [2014] 9 SCR 965
: (2014) 9 SCC 1; Kuldip Nayar and others v. Union
of India and others [2006] 5 Suppl. SCR 1 : (2006) 7
SCC 1; G. Narayanaswami v. G. Pannerselvam and
others [1973] 1 SCR 172 : (1972) 3 SCC 717; Union
of India v. Sankalchand Himatlal Sheth and another
[1978] 1 SCR 423 : (1977) 4 SCC 193 - referred to.
Melbourne Corporation v. Commonwealth [1947] 74
CLR 31 (Aust); Australian Capital Television Pty.
Limited and others and the State of New South Wales v.
The Commonwealth of Australia and another [Political
Advertising case] [1992] 177 CLR 106 (Aust);
Massachusetts Bonding & Insurance Co. v. United States
352 U.S. 128 (1956); R.E. Megarry, 'A Second
Miscellany-at-Law' (Stevens, London, 1973), p 152 -
referred to.
A perspective on the role of Parliamentary Committees
9. The 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. 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. [Paras
58-59][84-E-H]
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Entering the Committee System: State Committee
Assignments, Ronald D. Hedlund, Political; Research
Quarterly, Vol. 42, Issue 4, pp.597-625; Woodrow
Wilson, "Congressional Government", 1885, quoted in
the JCOC Final Report, (Baltimore, the Johns Hopkins
University Press, 1981) p.69; 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); "An Introduction to the
Procedure of House of Commons"; Hansard, 3rd Series,
Vol.235 (1877) p. 1478;"Growth of Committee System
in the Central Legislature of India 1920-1947" -
referred to.
Parliamentary Committees in India
10. The founding fathers of the Constitution perceived
that a parliamentary system would respond effectively to the
problems arising from our diversity as also to the myriad socioeconomic factors that the nation was faced with. With that
objective, in the political system that is established,
prominence was given to the Parliament, the organ that directly
represents the people and as such accountable to them. 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. Founded on English
traditions, the Indian Parliament's committee system has a vital
role in the parliamentary democracy. [Paras 70, 73-74][89-BC; 90-F-H]
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Rules of Procedure and Conduct of Business in Lok
Sabha
11. 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. [Para 76]
Parliamentary privilege under the Indian Constitution
12.1 Article 105 of the Constitution is relevant to
understand the status of parliamentary Committee and the
privileges it enjoys in the Indian content. Sub-article (2) of the
Article 105 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. 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
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its business. The Parliament has been enabled by the Constitution
to regulate its procedure apart from what has been stated directly
in the Constitution. [Paras 86-87][96-G; 97-A, F-H; 98-A-B]
12.2 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.[Para 88][98C]
U.P. Assembly case [Special Reference No. 1 of 1964]
1965 AIR 745 : [1965] SCR 413; Raja Ram Pal v.
Hon'ble Speaker, Lok Sabha and others [2007] 1
SCR 317 : (2007) 3 SCC 184 - referred to.
Black's Law Dictionary, 6th Ed., 1990, 9.1197; Erskine
May's Treatise on The Law, Privileges, Proceedings and
Usage of Parliament, (Lexis Nexis, 24thedn., 209;"-
referred to.
Judicial review of parliamentary proceedings and its
privilege
13. Articles 121 and 122 of the Constitution are extremely
significant as they are really meant to state the restrictions
imposed by the Constitution on both the institutions. 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); 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. [Paras 101, 102, 105][104-G; 108-D-F]
Hamilton v. Al Fayed [2001] 1 AC 395; Wellesley v.
Duke of Beaufort [1831] Eng R 809 : (1831) 2 Russ
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& My 639: (1831) 39 ER 538; New Brunswick
Broadcasting Co. v. Nova Scotia (Speaker of the House
of Assembly) [1993] 1 SCR 319; Harvey v. New
Brunswick (Attorney General) [1996] 2 SCR 876;
Bradlaugh v. Gossett (1884) 12 QBD 271 (D) - referred
to.
A History of English Law" by Sir William Holdsworth
- referred to.
Reliance on parliamentary proceedings as external aids
14.1 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. [Para
112][111-F-G]
14.2 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. [Para
117][113-E-G]
R.S. Nayak v. A.R. Antulay[1984] 2 SCR 495 : (1984)
2 SCC 183; State of West Bengal v. Union of India
1963 AIR 1241 : [1964] SCR 371; K.P. Varghese v.
Income Tax Officer, Ernakulam and another [1982]
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1 SCR 629 : (1981) 4 SCC 173; Dr. Ramesh Yeshwant
Prabhoo v. Prabhakar Kashinath Kunte and others
[1995] 6 Suppl. SCR 371 : (1996) 1 SCC 130; Novartis
AG v. Union of India and others [2013] 13 SCR 148 :
(2013) 6 SCC 1; State of Madhya Pradesh and another
v. Dadabhoy's New Chirimiri Ponri Hill Colliery Co.
Pvt. Ltd. [1972] 2 SCR 609 : (1972) 1 SCC 298; Union
of India v. Steel Stock Holders Syndicate, Poona [1976]
3 SCR 504 : (1976) 3 SCC 108; Surana Steels Pvt.
Ltd. v. Dy. Commissioner of Income Tax and others
[1999] 2 SCR 589 : (1999) 4 SCC 306; Ashoka Kumar
Thakur v. Union of India and others [2008] 4 SCR 1 :
(2008) 6 SCC 1; Additional Commissioner of Income
Tax, Gujarat v. Surat Art Silk Cloth Manufacturers'
Association, Surat [1980] 2 SCR 77 : (1980) 2 SCC
31; Dharam Dutt and others v. Union of India and
others [2003] 6 Suppl. SCR 151 : (2004) 1 SCC 712;
Kuldip Nayar and others v. Union of India and others
[2006] 5 Suppl. SCR 1 : (2006) 7 SCC 1 - referred
to.
Pepper v. Hart [1992] UKHL 3 : [1993] AC 593 :
[1992] 3 WLR 1032; R. v. Vasil [1981] 1 SCR 469,
121 D.L.R. (3d) 41; Re Anti-Inflation Act (Canada)
[1976] 2 SCR 373, 68 D.L.R. (3d) 452 - referred to.
Section 57(4) of the Evidence Act
15.1 Section 57 of the Evidence Act by employing the words
"shall", casts an obligation upon the Courts to take judicial notice
of the said facts. Section 57, sub-section (4) casts an obligation
on the Courts to take judicial notice of the course of proceedings
of Parliament. Parliamentary standing committee report being in
the public domain is a public document. Therefore, it is admissible
under Section 74 of the Act and judicial notice can be taken of
such a document as envisaged under Section 57(4) of the Act.
The said document can be taken on record. 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
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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.
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. [Paras 121, 123][115-BF]
Sole Trustee Lok Shikshana Trust v. Commissioner of
Income Tax, Mysore [1976] 1 SCR 461 : (1976) 1 SCC
254 - referred to.
15.2 In the instant case at hand, 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 accept, without contest, the opinion expressed
in the parliamentary standing committee report and the facts
stated therein; or 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. [Para
124][115-A-C; 116-A-C]
15.3 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"
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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. [Para 125][116-D-E]
15.4 Taking judicial notice of the Parliamentary Standing
Committee report can only be to the extent that such a report
exists. 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", 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.
[Para 127][116-G-H; 117-A]
Black's Law Dictionary - referred to.
Reference to Parliamentary Standing Committee report
16.1 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
Committee report. It is so thought 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, the concept of jurisprudential
foundational principle is dealt with 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
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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.