On 26.10.2017, 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 proceedings began with arguments from Attorney General, K.K. Venugopal. He submitted that PSCR couldn’t be relied upon by courts as it would violate Separation of Power which is a basic feature of the Constitution.
Chief Justice Dipak Misra observed that the reason for placing the matter before this constitutional bench was to avoid any constitutional discomfort between the judiciary and the parliament. Attorney General further submitted that when a report is pending for consideration in the Parliament, the same cannot be put to judicial scrutiny as it might change later. Thus, PSCR pending parliamentary scrutiny should be barred from any consideration by the court. Chief Justice agreed, noting that court was aware of the fine balance between all three organs of the State and the fine balance might not extend to looking at PSCR. Attorney General concluded by saying that if any part of PSCR was contentious, then that precludes the possibility of relying on any part of the report.
Next, Mr Colin Gonsalves, the counsel for the petitioner Kalpana Mehta began his arguments. He started by clarifying that the petitioner did not intend to impeach the PSCR but only rely upon the same to bring notice of court to certain facts.
He also assailed case laws cited by Mr Salve by pointing out that the cases cited were very different from the nature of the instant case and hence, inapplicable. All English cases cited by Mr. Salve were instances where criminal proceedings were sought to be initiated on representatives based on PSCR. He clarified that in the present writ proceeding, the petitioner did not want to use PSCR as evidence to be used in criminal proceedings but just highlight an issue of public importance using the report.
Justice Chandrachud also pointed that though Mr Salve was going to read Pepper v Hart, but he did not, hinting that it might be so because the case provided an exception to parliamentary privilege.
Mr Gonsalves reiterated that PSCR report can be relied upon to bring an issue of public importance to light. He continued that the present case was a vital opportunity for the court to illuminate an area where there was no precedent – i.e. use of PSCR in relation to PIL jurisdiction, which is unique to India.
Justice Ashok Bhushan asked if Parliamentary Privilege extended only to actions of representatives or also report of Parliamentary Committees? Mr. Gonsalves responded that when a report entered the public domain, it might be used by courts according to their discretion as long as they are not disputed.
With this, the day’s proceedings ended.
The matter will be heard next on 31.10.2017
(This post relies on contributions from Mr. Vijayant Singh)