Judgment in Plain EnglishJudicial Relevance of Parliamentary Report
Can the court place reliance upon the Parliamentary Standing Committee Reports (PSCRs)? Does using PSCRs impinge on Parliamentary Privileges? The 5 judge bench headed by the Chief Justice of India heard these questions. Two public interest litigations (PILs) filed by Kalpana Mehta and SAMA – Resource Group for Women and Health, on clinical trials dealing with human papillomavirus (HPV) vaccines brought these issues before the court.
There were reports of several deaths due to the effect of the two vaccines – Gardasil and Cervarix, manufactured by Merck Sharp and Dohme and Glaxo Smith Kline. The 81st Parliamentary Standing Committee Reports (PSCR) on Health and Family Welfare in their December 2014 Report had found grave irregularities in clinical trials for these vaccines. The report also recorded deviation from various established protocols and irregularities in obtaining consent from the clinical trial subjects.
The Court had to adjudicate on whether while exercising the power of judicial review under Article 32 it can rely on the report of the Parliamentary Standing Committee and issue directions.
On May 9th, the court delivered its judgment through three concurrent opinions. The Court concluded that in the exercise of its jurisdictions limited reliance can be placed on the PSCRs. Chief Justice Dipak Misra authored the first opinion speaking for himself and Justice A.M Khanwilkar. Justice Chandrachud authored the opinion for himself and Justice A.K. Sikri and, Justice Ashok Bhusan wrote a separate but concurring opinion.
Chief Justice Dipak Mishra
Chief Justice Dipak Misra began by noting that Article 122(1) and Article 212(1) are not absolute bars from looking into the validity of the parliamentary proceedings but is only confined to not looking into parliamentary proceedings on “ground of irregularity of procedure.”
Justice Misra relied on cases from R.S. Nayak v A.R. Antulay, State of West Bengal v UOI to Yashwant Prabhoo v Kashinath Kunte to highlight that the Court relied on PSCRs or speeches to understand the circumstances that led to the passing of the legislation to determine the intention of the legislature. He also referred to Crawford on Statutory Construction that observed that “Rule of Exclusion” of Parliamentary Materials has been criticised by jurists as “artificial and there is a strong case for whittling down the said rule.”
He then analysed the scope of Section 57(4) of the Indian Evidence Act under which, the court “shall take judicial notice” of the PSCR. He said that under Section 57(4), the PSCR is admissible in evidence, but a challenge cannot be allowed to the Report. So, he ruled that while “PSCR can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor its validity can be called in question”.
Justice DY Chandrachud
Justice Chandrachud began by citing English Cases where the conventional ‘Rule of Exclusion’ has been relaxed for PSCR. He cited Pepper (Inspector of Taxes) v Hart, where PSCR was relied upon to understand the meaning of an “ambiguous term” used in the bill.
Discussing a range of English cases, he noted that the common law position is that a reference to Parliamentary Report to prove a historical fact is not prohibited. However, it is impermissible to question the veracity of Parliamentary Report in court. He added that the English law maintains a balance between public debate and parliamentary privilege.
In U.K. there is a concept of Parliamentary Sovereignty while in India, it is Constitutional Sovereignty. This implies that all three organs of the state are subject to written Constitution. In that context, Justice Chandrachud added that the doctrine of “exclusive cognizance” adapted in the UK has no application in India which is governed by a written constitution. Indian Parliament is still subject to scrutiny for legislative competence (legality) and violation of fundamental rights (constitutionality). He cited Raja Ram Pal, which made it clear that Article 122(1) which prohibits judicial interference in parliamentary proceedings is still subject to twin test of legality and constitutionality. The argument that PSCRs cannot be looked into by courts is not the correct position in a strictly legal sense.
Justice Chandrachud analyzed the concept of judicial review and separation of power to assert that the current doctrine of ‘separation of power’ has moved beyond ‘one branch-one function’ approach to a concept which involves an integration of the ‘division of work’ and ‘checks and balances’. He said that the considerations of modern ‘Separation of Power’ doctrine harps on this ’functional relationship’ between three organs. He listed different functions of the PSCR. It may contain:-
- Statement by the government on matters of policy;
- Statements made by persons who have deposed before the Committee;
- Inference of fact including on the performance of government;
- Findings of misdemeanor implicating a breach of duty by public officials or private individuals or an evasion of law;
Justice Chandrachud said that one has to choose between different functions which can be relied upon by the court. In that context, he held that a PSCR containing a statement of position by the government on matters of policy, a historical fact can be relied upon. He observed that “..the constitutional function of adjudication in matters of public interest is aligned with the role of Parliament to secure accountability and responsiveness in governance”. In this context, the doctrine of separation of power focusing on ‘functional’ approach does not operate against the court relying upon the report of a parliamentary committee.
He held that PSCR can be relied upon by the court under its expansive jurisdiction of Article 32 but the court cannot go into the correctness or the validity nor can it go into the contentious aspect of the report. He concluded that “if the function of judicial review in facilitating the realization of socio-economic rights is construed in the context of the modern notion of separation of powers, there is no real conflict between the independence of the judicial process and its reliance on published reports of Parliamentary Committees.”
Justice Ashok Bhushan
Justice Bhushan opined that the publication of PSCRs is not just permitted, but encouraged by the Parliament. Greater dissemination of reports falls within the broader ‘right to know’ of the citizens. He further added that Section 57(4) of Indian Evidence Act makes it clear that “judicial notice” can be taken of proceedings of Parliament and Legislature, which includes PSCRs. He adverted to a report of “privilege committee” adopted by the Parliament which clarified that permission of the Lok Sabha Speaker would not be required for producing documents falling within the meaning of “public documents” under the Indian Evidence Act in Court.
However, he clarified that a document being admissible as evidence should not lead to a presumption that the contents of the documents are also true. Any contentious fact has to be independently verified or proved. PSCR may be relied on for adverting to on any historical fact or event, but no party can ‘question’ or ‘impeach’ report of Parliamentary Committee.
Three separate but concurring opinions were unanimous in their view that PSCR can be relied upon by the courts in the exercise of Article 32 or Article 136 jurisdiction only to a limited extent. The contentious part or sections which have been impeached by the other party cannot be relied upon by the court. The 5 judge bench clarified the position of law by maintaining a careful balance between judicial review and parliamentary privileges. Whether this judgment helps the petitioner’s cause in exposing the lapses in clinical trials by relying on PSCR is yet to be seen?