On 12.10.2017, arguments commenced 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. Mr Harish Salve, representing the respondents, began by taking the Court through the Reference Order and reading the relevant portions.
Mr Salve’s submissions rested on the following two principles. The first was that in the case of co-equal institutions, one institution could not evaluate or review the proceedings of the other institution, in the case that of the Parliament. Second that the freedom of speech was implicit in the working of every institution and the institution regulated its own processes and the speech of its functionaries. For example, if one spoke a falsity in Parliament, it was the Parliament which could correct it. Same with contempt proceedings in the Courts – for something untoward said in Court, it was the Court where these words were spoken that had the jurisdiction to initiate proceedings. At this point, Justice Sikri said that he agreed with Mr Salve’s submission that autonomy of the Parliament was paramount and should be respected.
Mr.Salve then argued that in the reference order, the Supreme Court itself had flagged certain factual issues and while petitioners could read evidence regarding factual issues, they could not do so from Parliamentary Standing Committee (PSC) Reports. He emphasized that if the PSC Report had legal consequences, which were beyond its remit, then only Parliament could adjudge the same and not the Court. He also pointed out that the moot issue in the instant hearing was whether the PSC Reports could be admissible as evidence before the court.
Mr Salve then submitted that cross-examinations could not be conducted on the basis of what was said in a privileged forum as anything said in a privileged forum would be judged by the forum itself. Referencing Art 122, Mr Salve submitted that the freedom of speech by MPs had a corresponding cover and what was said in the Parliament could not be impeached anywhere else except in the Parliament. Justice Chandrachud responded with an enquiry, asking if a PSC report could be looked at in a Court not necessarily to be impeached or questioned but to draw attention to a certain issue?
Mr Salve responded that the current PSC Report did not indicate a clearly defined social or related problem but was based on factual findings which could not be used in a Court, as the same could not be impeached. At best, a PSC Report might be an opinion, and it was unfair for the Court to place any sort of reliance on the same. In that context, if there was a lacuna, the parliamentary material might be used to identify the same.
Justice Chandrachud responded by saying that though a PSC Report might not be relied upon by a Court of law if it indicated a violation of law by specific entities, a PSC Report which indicated a generalized violation could be relied upon to define the contours of the problem. Mr Salve pointed out that in the current matter the PSC Report had specifically identified his clients as having violated certain laws and in addition could not be admitted as the Report had been published without hearing his clients.
Justice Ashok Bhushan differed with Mr Salve’s submission saying that there was a difference between relying on a PSC Report and seeking to impeach the said report. Mr Salve submitted that reliance placed on the PSC Report in a manner that could cause it to be impeached could not be allowed. Mr Salve quoted Hamilton v. Al Fayed wherein the parliamentary privilege was relaxed and drew upon the criticism the judgment received after it was passed to strengthen his point that parliamentary privilege was sacrosanct. With this, the arguments concluded for the day and the matter is listed on 24th October.
(This post relies on contribution from Mr Vijayant Singh)