A Constitution Bench comprising of Chief Justice Dipak Misra, Justices A.K. Sikri, A. M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan has reserved its judgment in the case where it was being decided whether courts can rely on Parliamentary Standing Committee reports without violating the privileges of Members of Parliament.
The matter arose when a PIL was filed on behalf of petitioner Kalpana Mehta who had questioned the actions taken by the Drugs Controller General of India and the Indian Council of Medical Research while conducting clinical trials of the Human Papillomavirus (HPV) vaccines for prevention of cervical cancer manufactured by M/s Glaxo Smith Kline Asia Pvt. Ltd. and MSD Pharmaceuticals Pvt. Ltd. The clinical trials conducted by the Governments of Gujarat and Andhra Pradesh with PATH International led to the death of a number of young girls. Pertinently, the 72nd and 81st Parliamentary Standing Committee Report specifically identified grave violations in the procedure adopted by the Respondents while conducting the clinical trials.
In an order passed on April 5th, 2017, this Court questioned whether in hearing a plea under Article 32 and Article 136 could “refer to and place reliance upon the report of the Parliamentary Standing Committee?” and whether the report could be looked at for the purpose of reference. The order referred the matter to the Constitution Bench.
Attorney General KK Venugopal argued that the Court cannot rely on reports for deciding an issue adjudicated since it would impinge upon Parliamentary privileges and violate the separation of powers prescribed in the Constitution. The freedom of speech guaranteed to Parliament is sacrosanct, and essential for the democratic functioning of the State.
Senior Advocate Harish Salve, appearing on behalf of MSD Pharmaceuticals, has argued that Parliamentary Standing Committee Reports being a product of the Parliament intended to assist in their functioning, cannot be subject to judicial scrutiny. Putting the report to judicial review would violate the privileges of Parliament. However, one may rely upon the reports as external aids of construction in order to determine the surrounding circumstances or the historical facts concerning the law under scrutiny. Justice Chandrachud refuted this, stating that reference to a Report does not necessarily mean that it is being put to judicial review, it may still be relied upon to indicate the nature of an issue of public interest, without questioning the Report.
Senior Advocates Anand Grover and Colin Gonsalves, appearing on behalf of the petitioner, submitted that there cannot be an absolute rule that the reports cannot be looked at by the Courts. Mr. Grover further contended that the report may be looked at for the limited purpose of apprising the Court about the facts stated in it. Relying upon the report for this purpose would not put it to judicial review, and therefore would not result in the violation of the privileges guaranteed to Parliament.
Further, they cited instances where this Court has relied on Standing Committee Reports for reaching a decision. However, the bench questioned this by stating that no one had challenged the reports in those instances.
Senior Advocate Colin Gonsalves has asserted the view that the Reports may be relied upon under Section 57(4) of the Indian Evidence Act, 1872, which states that Courts shall take judicial notice of proceedings of the Parliament and of legislatures. Senior advocate Harish Salve had submitted that there is an absolute bar on the reliance of Parliamentary Standing Committee Reports.
Senior Advocate Shyam Divan on behalf of respondents has stated that Parliamentary Standing Committee Reports record their own evidence and follow their own procedures at reaching a conclusion and therefore, for Courts to rely on them could be erroneous.
CJI Misra has questioned whether specifically in the cases where the issue is of public importance, reliance could be placed on Parliamentary Standing Committee Reports, and what is the scope of that reliance. He further observed that while placing reliance, the doctrine of restraint has to be applied by this Court
The hearing before the Supreme Court bench lasted for six days and parties were directed to file written submissions within a week.