A Two Judge Bench of Supreme of India has recently referred the following questions for the consideration of Constitution Bench.
(i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee?
(ii) Whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard 34 being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?
The Bench comprising of Justices Dipak Misra and Rohinton Fali Nariman was considering petitions relating to the action taken by the Drugs Controller General of India and the Indian Council of Medical Research (ICMR) pertaining to approval of a vaccine, namely, Human Papilloma Virus (HPV) manufactured M/s. Glaxo Smith Kline Asia Pvt. Ltd. and MSD Pharmaceuticals Private Limited, respectively for preventing cervical cancer in women and the experimentation of the vaccine was done as an immunization by the Governments of Gujarat and Andhra Pradesh with the charity provided by PATH International. The issue also arose with regard to the untimely death of certain persons and grant of compensation.
In the course of proceedings, attention of the Court was drawn to the 81st Report dated 22nd December, 2014 of the Parliamentary Standing Committee.
Then an issue was raised from the bar as to whether the Court while exercising the power of judicial review or its expansive jurisdiction under Article 32 dealing with the public interest litigation, can advert to the report of the Parliamentary Standing Committee and on that basis issue directions.
Mr. Mukul Rohatgi, Attorney General of India has filed a written note of submission contending that the reports of the Parliamentary Standing Committee are at best external aids of construction in order to determine the surrounding circumstances or the historical facts for the purpose of discerning the mischief sought to be remedied, but not for any other purpose.
Senior Advocates Anand Grover and Collin Gonsalves, appearing for the petitioners, submitted that looking at the report of the Parliamentary Standing Committee by the Court in a writ petition preferred under Article 32 of the Constitution is only to be apprised about facts to arrive at a conclusion for the purpose of issue of necessitous directions and there cannot be absolute rule that it cannot be looked at.
They also contended that as long as the reference to report does not violate the freedom of speech of the members of the Committee or there is no attempt to impugn the report or criticize the same, reliance on the same should not be prohibited.
After referring many authorities the bench observed that the Parliamentary Standing Committee is a committee constituted under the Rules and what a member speaks over there is absolutely within the domain of that committee. Freedom of speech of a member of a Committee is only guided subject to provisions of the Constitution and the Rules and standing orders regulating the procedure of Parliament.
The bench also observed that while exercising the power of judicial review or to place reliance on the report of the Parliamentary Standing Committee, the doctrine of restraint has to be applied by this Court as required under the Constitution.
“The view of a member of the Parliament or a member of the Parliamentary Standing Committee who enjoys freedom of speech and expression within the constitutional parameters and the rules or regulations framed by the Parliament inside the Parliament or the Committee is not to be adverted to by the court in a lis”.
According to the bench, the invitation to contest a Parliamentary Standing Committee report is likely to disturb the delicate balance that the Constitution provides between the constitutional institutions. If the Court allows contest and adjudicates on the report, it may run counter to the spirit of privilege of Parliament which the Constitution protects.
The Bench was of the prima facie of the view that the Parliamentary Standing Committee report may not be tendered as a document to augment the stance on the factual score that a particular activity is unacceptable or erroneous.
“However, regard being had to the substantial question of law relating to interpretation of the Constitution involved, we think it appropriate that the issue be referred to the Constitution Bench under Article 145(3) of the Constitution bench”.
Then the bench formulated the above questions and referred the matter and directed to place the matter before the Chief Justice to constitute the appropriate bench.
Read the Judgment here.