On 25.10.2017, 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.
Mr Harish Salve began by reiterating that under the Indian Constitutional Scheme, the Parliamentary Standing Committee Report (PSCR) could not be used by the courts except for two narrow exceptions.
Justice Chandrachud countered saying that court was not barred from utilising legislative material such as PSCR beyond those two exceptions. He made a distinction between a publication within a legislative process like a standing committee report and a statement made in Parliament by a representative who enjoyed constitutional protection of free speech.
Justice Sikri asked if the PSCR commented on the constitutionality of a law passed by Parliament then would the court be allowed to rely on the PSCR while examining the constitutionality. Mr. Salve digressed by saying that if a PSCR brought to light a misdemeanour or violation of law committed by an individual or a company, then PSCR could not be relied upon to ascertain the individual’s liability. Justice Chandrachud interjected by saying that the PSCR’s purpose was not restricted only to the working but also extended to holding the executive accountable in all forums. Mr. Salve objected and emphasized that PSCR could not be used to hold the executive accountable as it was advisory and had no legal consequence.
Justice Chandrachud observed that PSCRs are vital tools in holding the executive accountable and strict Separation of Power could not be invoked to prevent courts from looking into PSCR. He gave the example of a Public Interest Litigation (PIL ) litigant using a PSCR report as the basis for bringing an issue of public interest before the court. In such cases, where a PSCR was the basis of the PIL, barring the jurisdiction of the court on the grounds of Parliamentary Privilege was unjustified. PSCR was not being impeached, he added, but only being used by the court to be alert to the issue of public interest. However, Chief Justice Dipak Misra and Justice Sikri differed with Justice Chandrachud as they tilted towards a strict application of Separation of Power.
Towards the end, Justice Bhushan and Khanwilkar asked how PSCRs published in a gazette are different from something said in Parliament by a representative who had immunity from being impeached in a court of law? Mr. Salve clarified that the publication of PSCR did not dilute the protection of Parliamentary Privilege and would enjoy the same protection as speeches inside Parliament. The day’s proceeding ended with this argument and the matter will be heard the next day (26.10.17).
(This post relies on contributions from Mr. Vijayant Singh)