On 01.11.2017, 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 began with Mr Anand Grover emphasizing that limited reliance on a PSCR did not violate Parliamentary privileges. Justice Ashok Bhushan observed that the court could use a PSCR, provided the portions that were to be used would be decided on a case to case basis. Chief Justice Dipak Misra also said that a PSCR in certain cases might be admissible but reliance would depend upon case to case basis. Mr Grover continued that if anyone sought to rely on uncontested facts in PSCR, then such facts could be put in the affidavit without destabilising the comity of the institution. He agreed in principle with the case by case reliance on PSCR. Chief Justice Misra said that a balance should be struck between respecting the separation of power and highlighting issues of public importance as indicated in the PSCR.
Mr Shyam Divan representing the respondent disagreed with the case by case examination approach for determining PSCR admissibility. He argued that PSCR could not be unpacked or disintegrated by the court. Parliament had its own procedure to record facts which was different from the procedure recorded in the court. He further argued that PSCR was to be read as a whole and couldn’t be referred to in sections according to exceptions to parliamentary privileges. Drawing attention to the instant matter, he submitted that in this case, all facts petitioners sought to rely on were being disputed by the Respondent PATH. Mr Shyam Divan concluded by emphasizing that PSCR could be relied upon only in the context of statute namely – ambiguity of statute or to understand it’s legislative history. There wasn’t any scope for broadening the exceptions.
With this, arguments on this matter conclude and the matter has been reserved for judgement.
(The post relies on contributions from Mr Vijayant Singh)