On 31.10.2017, arguments continued before the 5 Judge Constitutional Bench comprising of the Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan.
The day’s proceeding began with Mr Colin Gonsalves arguing that uncontested parts of PSCR could be relied on by courts. He distinguished this from Mr Salve’s position that if any part of the report is contested then it renders the entire report unreliable. Mr Gonsalves pointed to S. 57 of Indian Evidence Act which states that the court could look into parliamentary proceedings to stress the point that parliamentary proceedings could be relied upon in cases of writ petition also.
Next, Mr Anand Grover representing the petitioner also argued that the uncontested part of the PSCR could be relied upon during judicial proceedings. He continued that the purpose of parliamentary privilege was to prevent judicial scrutiny of parliamentary proceedings but in this case, it was the executive that was being shielded. The purpose of the PSCR should not be limited to illuminating the legislative intent or for tracing legislative history but also to hold the executive and specific public departments accountable. In that regard, the present PSCR could be looked into so as to hold the public department accountable for its inaction. Chief Justice Dipak Misra objected to this argument citing the separation of power between the three branches of the State.
Chief Justice Misra observed that the court had wide powers and could initiate an inquiry and need not rely on PSCR for looking into the matter. Mr Grover responded that a fresh inquiry without relying on PSCR would amount to reinventing the wheel as the PSCR already contained evidence that had been meticulously collected over a period of six years. Drawing attention to the facts of the instant case, he argued that the affidavits filed by the government are silent on certain issues like informed consent of the persons undergoing clinical trials. It could be assumed, he continued, that the government was not disputing the findings of PSCR that there was no informed consent, hence these PSCR findings could be relied upon by the judiciary. With this, Mr Grover concluded his arguments.
The matter will continue to be heard on 01.11.2017.