Arguments on Day 2

On 24.10.2017, arguments continued before the 5 Judge bench comprising of  Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan.

Mr Harish Salve, appearing for the respondents, continued the argument that Parliamentary Standing Committee Report (PSCR) can’t be relied upon by the Apex Court. He argued that as the nature and functions of two institutions are different – Parliament being legislative and Court being adjudicatory, the PSCR cannot be relied on by the court as it was part of parliamentary proceedings. He continued, PSCR was a microcosm of the House and enjoyed the same protection under Parliamentary Privileges as the House. Being delegates of Parliament, PSCR members could not be questioned in any forum about what they disclosed to the Committee.

Chief Justice Dipak Misra enquired if PSCRs could be relied upon once it was published and in the public domain. Mr Salve responded that on the publication of the PSCR, it could be relied on but only under two situations- first, to understand the legislative history of the statute, if the language is obscure, and secondly, as a tool to hold the executive accountable. He cited Rajya Sabha Rules 216, 217, 218, 219, 220, 274, 275 in support of the second situation.

Justice Chandrachud posed a hypothetical question – if the court had noticed lacunae in law and advised legislature to fill that lacuna, and the PSCRs took cognisance of the same, then would the PSCR become judicially reliable? Mr Salve responded by citing Rajya Sabha Rule 84 – the power to take evidence or call for papers or documents, and Rule 85 - the procedure to examine witnesses, as the only statutory instances where PSCR can be examined. It would be perilous, he argued, if the evidence taken under these Rules found its way into court. Mr Salve supported his argument with the instance of the 2G Scam where the Joint Parliamentary Committee (JPC) found evidence against the accused in the 2G case, but the trial court did not allow that as evidence and relied on other sources.

Justice Chandrachud asked if in cases where the only evidence against the accused is a JPC report and there is no further investigation, could the court order an investigation based on the report? Mr Salve answered in the negative. Justice Chandrachud further observed that the two exceptions where PSCRs could be relied upon by the court might be too narrow, and noted that there might be a third exception - to scrutinize the specific actions of public departments - as it is in this case. Mr Salve replied that the standard test for relying on PSCRs is whether it contains contentious information, in which case it cannot be used. More exceptions might be evolved on the use of PSCR by the courts. 

With this, the day’s proceedings came to an end.

The matter is scheduled to be heard next on 25.10.17.


(This post relies on the contribution of Mr Vijayant Singh)