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TMI Blog2018 (5) TMI 2068X X X X Extracts X X X X X X X X Extracts X X X X ..... and Parliamentary Committee Report. HELD THAT:- Following conclusions are reached: (i) According to Sub-clause (2) of Article 105 of Constitution of India no Member of Parliament can be held liable for anything said by him in Parliament or in any committee. The reports submitted by Members of Parliament is also fully covered by protection extended Under Sub-clause (2) of Article 105 of the Constitution of India. (ii) The publication of the reports not being only permitted, but also are being encouraged by the Parliament. The general public are keenly interested in knowing about the parliamentary proceedings including parliamentary reports which are steps towards the governance of the country. The right to know about the reports only arises when they have been published for use of the public in general. (iii) Section 57(4) of the Indian Evidence Act, 1872 makes it clear that the course of proceedings of Parliament and the Legislature, established under any law are facts of which judicial notice shall be taken by the Court. (iv) Parliament has already adopted a report of privilege committee , that for those documents which are public documents within the meaning of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns into personal attack on the individual member of Parliament or House or made in vulgar or abusive language tarnishing the image of member or House, the said comments amount to contempt of the House and breach of privilege. (x) The function of adjudicating rights of the parties has been entrusted to the constituted courts as per Constitutional Scheme, which adjudication has to be made after observing the procedural safeguards which include right to be heard and right to produce evidence. Parliament, however, is not vested with any adjudicatory jurisdiction which belong to judicature under the Constitutional scheme. (xi) Admissibility of a Parliamentary Committee Report in evidence does not mean that facts stated in the Report stand proved. When issues of facts come before a Court of law for adjudication, the Court is to decide the issues on the basis of evidence and materials brought before it. The questions having been answered, let these writ petitions be listed before the appropriate Bench for hearing. - Writ Petition (Civil) Nos. 558 of 2012 and 921 of 2013 (Under Article 32 of the Constitution of India) - - - Dated:- 9-5-2018 - Dipak Misra, C.J.I., A.M. Kha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... role of Parliamentary Committees K. International position of Parliamentary Committees K.1 Parliamentary Committees in England K.2 Parliamentary Committees in United States of America K.3 Parliamentary Committees in Canada K.4 Parliamentary Committees in Australia L. Parliamentary Committees in India L.1 Rules of Procedure and Conduct of Business in Lok Sabha M. Parliamentary privilege M.1 Parliamentary privilege under the Indian Constitution M.2 Judicial review of parliamentary proceedings and its privilege N. Reliance on parliamentary proceedings as external aids O. Section 57(4) of the Indian Evidence Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also certain statutory provisions of the Indian Evidence Act, 1872 (for brevity, the Evidence Act ). B. The factual background 2. The initial debate and deliberation before the two-Judge Bench that was hearing the instant Writ Petitions had focussed around the justifiability of the action taken by the Drugs Controller General of India and the Indian Council of Medical Research (ICMR) pertaining to the approval of a vaccine, namely, Human Papilloma Virus (HPV) manufactured by the Respondent No. 7, M/s. GlaxoSmithKline Asia Pvt. Ltd., and the Respondent No. 8, MSD Pharmaceuticals Private Limited, for preventing cervical cancer in women and the experimentation of the vaccine was done as an immunisation by the Governments of Gujarat and Andhra Pradesh (before bifurcation, the State of Andhra Pradesh, eventually the State of Andhra Pradesh and the State of Telangana) with the charity provided by the Respondent No. 6, namely, PATH International. Apart from the aforesaid issue, the grievance with regard to the untimely death of certain persons and the grant of compensation on the foundation that there had been experiment of the drugs on young girls who had not reached the age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parameters pertaining to the challenge of amendments to the Constitution or the constitutionality of a statute. When a writ of mandamus is sought on the foundation of a factual score, the Court is required to address the facts asserted and the averments made and what has been stated in oppugnation. Once the Court is asked to look at the report, the same can be challenged by the other side, for it cannot be accepted without affording an opportunity of being heard to the Respondents. 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. 73. As advised at present, we are 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 appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal conclusions on the basis of wide spectrum of inputs and materials including what has been stated in the PSC report. 7. The aforesaid submission, as is noticeable, intends to convey that no constitutional debate should be raised with regard to reliance on the report of PSC and the Court should decide without reference to the concepts of parliamentary privilege, separation of powers and comity of institutions. The argument, in entirety, put forth by the Petitioners is not founded on the said bedrock inasmuch as Mr. Colin Gonsalves and Mr. Anand Grover, learned Senior Counsel appearing for the Petitioners, have argued that the Constitutional Court in exercise of the power of judicial review can take note of at the report of the PSC and also rely upon the said report within the constitutional parameters and the proposition does not invite any constitutional discordance. It is further contended that the concept of parliamentary privilege is enshrined Under Article 105 of the Constitution which guarantees freedom of speech within the House during the course of the proceedings of the House and the said freedom has been conferred to ensure that the members of Parliament express them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislature only to understand the provisions of a statute in certain context and second, the limited interpretation that is required to be placed on the words judicial notice as used in Section 57(4) of the Evidence Act regard being had to the context. It is urged by them that allowing contest and criticism of the report would definitely create a stir in the constitutional balance. 11. It is also highlighted that in a public interest litigation, the Court has relaxed the principle of locus standi, encouraged epistolary jurisdiction, treated the Petitioner as a relator, required the parties on certain occasions not to take an adversarial position and also not allowed technicalities to create any kind of impediment in the dispensation of justice but the said category of cases cannot be put on a high pedestal to create a concavity in the federal structure of the Constitution or allow to place a different kind of interpretation on a constitutional provision which will usher in a crack in the healthy spirit of the Constitution. 12. We shall refer to the arguments and the authorities cited by both sides in the course of our deliberation. Suffice it to mention, the fundamental a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority from the Constitution and it has to act within the limits of its authority. Observing about the power of this Court, he ruled that this Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of the Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. He further observed that it is for this Court to uphold the constitutional values and to enforce the constitutional limitations, for it is the essence of the Rule of law. Elaborating the said concept, Sabharwal, C.J. in I.R. Coelho (Dead) by LRs. v. State of T.N. (2007) 2 SCC 1, speaking for the nine-Judge Bench, held that the supremacy of the Constitution embodies that constitutional bodies are required to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ, viz., the judiciary. 15. Be it noted, in the aforesaid case, a distinction was drawn between parliamentary and constitutional sovereignty. Speaking on the same, the Bench opined that our Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a law made in derogation of that limitation, the Court in Deep Chand v. State of Uttar Pradesh and Ors. 1959 Supp. (2) SCR 8 : AIR 1959 SC 648 reproduced a passage from Cooley's book on Constitutional Limitation (Eighth Edition, Volume I) which is to the following effect: From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, a question whether the legislature in the particular case, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the constitutional limits and observed the constitutional conditions. Thereafter, the Constitution Bench referred to the observations of the Judicial Committee in Queen v. Burah (1878) LR 5 I.A. 178 wherein it was observed that whenever a question as to whether the legislature has exceeded its prescribed limits arises, the courts of justice determine the said question by looking into the terms of the instrument which created the legislative powers affirmatively and which restricted the said powers negatively. The Constitution Bench also referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G. Doctrine of separation of powers 21. Having stated about constitutional sovereignty and constitutional limitation, we may presently address the issue as to how the Constitution of India has been understood in the context of division of functions of the State. In Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr. 1975 Supp. SCC 1, Beg, J., in his concurring opinion, quoted what M.C. Setalvad, a distinguished jurist of India, had said in The Common Law in India (The Hamlyn Lectures), 12th Series, 1960. We think it appropriate to reproduce the paragraph in entirety: The Constitution divides the functions of the Union into the three categories of executive, legislative and judicial functions following the pattern of the British North America Act and the Commonwealth of Australia Act. Though this division of functions is not based on the doctrine of separation of powers as in the United States yet there is a broad division of functions between the appropriate authorities so that, for example, the legislature will not be entitled to arrogate to itself the judicial function of adjudication. 'The Indian Constitution has not indeed recognised the doctrine of separati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... role over the law-making activities of the executive and the legislature. In State of Tamil Nadu v. State of Kerala and Anr. (2014) 12 SCC 696, this Court, laying down the principle of separation of powers, stated that even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of the Rule of law. 23. In Bhim Singh v. Union of India and Ors. (2010) 5 SCC 538, the Court, for understanding the concept of separation of powers, observed that two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution and secondly, that in modern governance, a strict separation is neither possible nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers and the same is founded on keen scrutiny of the constitutional text. The Constitution does not strictly prohibit overlap of functions and, in fact, provides for some overlap in a parliamentary democracy. What it prohibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the judiciary is the self imposed discipline of judicial restraint. 26. In I.R. Coelho (supra), adverting to the issue of separation of powers, the nine-Judge Bench referred to the basic structure doctrine laid down in Kesavananda Bharati (supra) by the majority and the reiteration thereof in Indira Nehru Gandhi (supra) and reproduced a passage from Alexander Hamilton's book The Federalist and eventually held: 67. The Supreme Court has long held that the separation of powers is part of the basic structure of the Constitution. Even before the basic structure doctrine became part of constitutional law, the importance of the separation of powers on our system of governance was recognised by this Court in Special Reference No. 1 of 1964. 27. From the above authorities, it is quite vivid that the concept of constitutional limitation is a facet of the doctrine of separation of powers. At this stage, we may clearly state that there can really be no strait-jacket approach in the sphere of separation of powers when issues involve democracy, the essential morality that flows from the Constitution, interest of the citizens in certain spheres like environment, sustenance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngth from the spirit of the Constitution. The propelling element of the Constitution commands the realization of the values. The aspiring dynamism of the interpretative process also expects the same. 29. This Court has the constitutional power and the authority to interpret the constitutional provisions as well as the statutory provisions. The conferment of the power of judicial review has a great sanctity as the Constitutional Court has the power to declare any law as unconstitutional if there is lack of competence of the legislature keeping in view the field of legislation as provided in the Constitution or if a provision contravenes or runs counter to any of the fundamental rights or any constitutional provision or if a provision is manifestly arbitrary. 30. When we speak about judicial review, it is also necessary to be alive to the concept of judicial restraint. The duty of judicial review which the Constitution has bestowed upon the judiciary is not unfettered; it comes within the conception of judicial restraint. The principle of judicial restraint requires that judges ought to decide cases while being within their defined limits of power. Judges are expected to interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the court is not expected to sit as an appellate authority on an opinion. 33. At this juncture, we think it apt to clearly state that the judicial restraint cannot and should not be such that it amounts to judicial abdication and judicial passivism. The Judiciary cannot abdicate the solemn duty which the Constitution has placed on its shoulders, i.e., to protect the fundamental rights of the citizens guaranteed under Part III of the Constitution. The Constitutional Courts cannot sit in oblivion when fundamental rights of individuals are at stake. Our Constitution has conceived the Constitutional Courts to act as defenders against illegal intrusion of the fundamental rights of individuals. The Constitution, under its aegis, has armed the Constitutional Courts with wide powers which the Courts should exercise, without an iota of hesitation or apprehension, when the fundamental rights of individuals are in jeopardy. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diciary takes note of the obtaining empirical facts and the aspirations of the generation that are telescoped into the future. If constitutional provisions have to be perceived from the prism of growth and development in the context of time so as to actualize the social and political will of the people that was put to in words, they have to be understood in their life and spirit with the further potentiality to change. 37. A five-Judge Bench in GVK Industries Limited and Anr. v. Income Tax Officer and Anr. (2011) 4 SCC 36 has lucidly expressed that our Constitution charges the various organs of the State with affirmative responsibilities of protecting the welfare and the security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the nation. The powers of judicial review are granted in order to ensure that legislative and executive powers are used within the bounds specified by the Constitution. The powers referred by the Constitution and implied and borne by the constitutional text have to be perforce admitted. Nevertheless, the very essence of constitutionalism is also that no organ of the State may arrogate to itself powers beyond what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.R. Bommai (supra) the Court ruled that correct interpretation in proper perspective would be in the defence of democracy and in order to maintain the democratic process on an even keel even in the face of possible friction, it is but the duty of the Court to interpret the Constitution to bring the political parties within the purview of the constitutional parameters for accountability and to abide by the Constitution and the laws for their strict adherence. With the passage of time, the interpretative process has become expansive. It has been built brick by brick to broaden the sphere of rights and to assert the constitutional supremacy to meet the legitimate expectations of the citizens. The words of the Constitution have been injected life to express connotative meaning. 39. Recently, in K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC 1, one of us (Dr. D.Y. Chandrachud, J.) has opined that constitutional developments have taken place as the words of the Constitution have been interpreted to deal with new exigencies requiring an expansive reading of liberties and freedoms to preserve human rights under the Rule of Law. It has been further observed that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstood that the view rendered therein disapproved the view point in A.K. Gopalan and reflected upon the concept of impact doctrine in Sakal Papers (P) Ltd. v. Union of India (1962) 3 SCR 842 : AIR 1962 SC 305. The Court, after referring to Sambhu Nath Sarkar v. State of West Bengal and Ors. (1973) 1 SCC 856, Haradhan Saha v. The State of West Bengal and Ors. (1975) 3 SCC 198 : (1975) 1 SCR 778 and Khudiram Das v. State of West Bengal and Ors. (1975) 2 SCR 832 : (1975) 2 SCC 81, reproduced a passage from Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 which reads thus: The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by Article 21, such law, insofar as it abridges or takes away any fundamental right Under Article 19 would have to meet the challenge of that article. 42. The Court reproduced a passage from the opinion expressed by Krishna Iyer, J. which stated that the proposition is indubitable that Article 21 does not, in a given si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the said provision would tantamount to prohibition or adding a disqualification which is neither expressly stated nor impliedly discernible from the provision. Eventually, the majority expressed that when there is no disqualification for a person against whom charges have been framed in respect of heinous or serious offences or offences relating to corruption to contest the election, it is difficult to read the prohibition into Article 75(1) by interpretative process or, for that matter, into Article 164(1) to the powers of the Prime Minister or the Chief Minister in such a manner. That would come within the criterion of eligibility and would amount to prescribing an eligibility qualification and adding a disqualification which has not been stipulated in the Constitution. In the absence of any constitutional prohibition or statutory embargo, such disqualification cannot be read into Article 75(1) or Article 164(1) of the Constitution. 46. Another aspect that was highlighted in Manoj Narula (supra) pertained to constitutional implication and it was observed that the said principle of implication is fundamentally founded on rational inference of an idea from the words used in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 48. The Court, in Union of India v. Sankalchand Himatlal Sheth and Anr. (1977) 4 SCC 193, ruled that it is to be remembered that when the Court interprets a constitutional provision, it breathes life into the inert words used in the founding document. The problem before the Constitutional Court is not a mere verbal problem. Literalness , observed Frankfurter, J., may strangle meaning and he went on to add in Massachusetts Bonding Insurance Co. v. United States 352 U.S. 128 (1956) that there is no surer way to misread a document than to read it literally. The Court cannot interpret a provision of the Constitution by making a fortress out of the dictionary . The significance of a constitutional problem is vital, not formal: it has to be gathered not simply by taking the words and a dictionary, but by considering the purpose and intendment of the framers as gathered from the context and the setting in which the words occur. The difficulty of gathering the true intent of the law giver from the words used in the statute was expressed by Holmes, J. in a striking and epigrammatic fashion when he said: Ideas are not often hard but the words are the devil 1 and this diffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Congress on public exhibition, whilst Congress in its Committee rooms is Congress at work 3 . This is because most of the work of Congress was referred to committees for detailed review to inform debate on the floor of the House. 53. Former U.S. Representative James Shannon commented during a 1995 conference on the role of committees in Malawi's legislature: Around the world there is a trend to move toward more reliance on committees to conduct the work of parliament, and the greatest reason for this trend is a concern for efficiency. The demands on a modern parliament are numerous and it is not possible for the whole house to consider all the details necessary for performing the proper function of a legislature. 4 54. Lord Campion in his book 5 has explained the dual sense in which the word Committee was used in old parliamentary language: In early days it is not the body as a whole but each single member that is meant by the term, 'the body is described as the committee' to whom the bill is committed. The formation of the terms is the same as that of any other English word which denotes the recipient in a bilateral relation of obligation, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative business, committees serve other useful services. Service on these committees keeps the members adequately supplied with information, deepens their insight into affairs and steady their judgment, providing invaluable training to aspirants to office, and the general level of knowledge and ability in the legislature rises. Committees properly attuned to the spirit and forms parliamentary government can serve the country well as the eyes and ears and to some extent the brain of the legislature, the more so since the functions and fields of interest of the government increase day by day. 57. Also, in the said book, the following observations have been made with respect to the functions of Committees: As the committee system developed in the course of time the various functions of these bodies were differentiated into a few fixed types and a standard of size appropriate to each of these functions was also arrived at. These committees are appointed for a variety of purposes. One of the major purposes for which committees are appointed is the public investigation of problems out of the report upon which legislation can be built up. Secondly, committees are appointed to l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apt to have a holistic view of the role of Parliamentary Standing Committees in a parliamentary democracy. 61. History divulges that Parliamentary Standing Committees have been very vital institutions in most of the eminent democracies such as USA, United Kingdom, Canada, Australia, etc. Over the years, the committee system has come to occupy importance in the field of governance. K.1 Parliamentary Committees in England 62. British parliamentary history validates that parliamentary committees have existed in some form or the other since the 14th century. Perhaps the committee system originated with the 'triers and examiners of petitions' - they were individual members selected for drawing up legislations to carry into effect citizens' prayers that were expressed through petitions. By the middle of the 16th century, a stable committee system came into existence. These Parliamentary committees are sub-legislative organizations each consisting of small number of Members of Parliament from the House of Commons, or peers from the House of Lords, or a mix of both appointed to deal with particular areas or issues; most are made up of members of the Commons. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive jurisdiction. Sub-committees handle specific areas of the committee's work. Select and joint committees generally handle oversight or housekeeping responsibilities. 11 (iv) Several thousand bills and resolutions are referred to committees during each 2-year Congress. Committees select a small percentage for consideration, and those not addressed often receive no further action. The bills that committees report help to set the Senate's agenda. 66. When a committee or sub-committee favours a measure, it usually takes four actions: first it asks relevant executive agencies for written comments on the measure; second, it holds hearings to gather information and views from non-committee experts and at committee hearings, these witnesses summarize submitted statements and then respond to questions from the senators; third, a committee meets to perfect the measure through amendments, and non-committee members sometimes attempt to influence the language; and fourth, when the language is agreed upon, the committee sends the measure back to the full Senate, usually along with a written report describing its purposes and provisions. A committee's influence extends to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy-making process. 15 In respect of their formal proceedings, committees are microcosms and extensions of the Houses themselves, limited in their power of inquiry by the extent of the authority delegated to them and governed for the most part in their proceedings by procedures and practices which reflect those which prevail in the House by which they were appointed. L. Parliamentary Committees in India 69. Having reflected upon the parliamentary committees and their role in other democracies, we may now proceed to deal with the parliamentary committees in India. The long freedom struggle in India was not just a movement to achieve freedom from British rule. It was as much a movement to free ourselves from the various social evils and socio-economic inequities and discriminations, to lift the deprived and the downtrodden from the sludge of poverty and to give them a stake in the overall transformation of the country. It was with this larger national objective that a democratic polity based on parliamentary system was conceived and formally declared in 1936 as the establishment of a democratic state, a sovereign state which would promote and foster full democracy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inish the task assigned to them and submit a report. The principal Ad hoc Committees are the Select and Joint Committees on Bills. Railway Convention Committee, Joint Committee on Food Management in Parliament House Complex, etc. also come under the category of Ad hoc Committees. 72. In the said document, it has been observed thus in respect of the Standing Committees of Parliament: Standing Committees are those which are periodically elected by the House or nominated by the Speaker, Lok Sabha, or the Chairman, Rajya Sabha, singly or jointly and are permanent in nature. In terms of their functions, Standing Committees may be classified into two categories. One category of Committees like the Departmentally Related Standing Committees (DRSCs), Financial Committees, etc., scrutinise the functioning of the Government as per their respective mandate. The other category of Committees like the Rules Committee, House Committee, Joint Committee on Salaries and Allowances, etc. deal with matters relating to the Houses and members. 73. The functions of the Parliament in modern times are not only diverse and complex in nature but also considerable in volume and the time at its dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the detailed studies undertaken by standing committees. Indian parliamentary committees are a huge basin of information which are made available to the Members of Parliament in order to educate themselves and contribute ideas to strengthen the parliamentary system and improve governance. The committee system is designed to enhance the capabilities of Members of Parliament to shoulder greater responsibilities and broaden their horizons. 76. As has been stated in the referral judgment with regard to the Parliamentary Committee, we may usefully refer to the Rules of Procedure and Conduct of Business in Lok Sabha (for short 'the Rules'). Rule 2 of the Rules defines Parliamentary Committee . It reads as follows: 2. (1)... Parliamentary Committee means a Committee which is appointed or elected by the House or nominated by the Speaker and which works under the direction of the Speaker and presents its report to the House or to the Speaker and the Secretariat for which is provided by the Lok Sabha Secretariat. 77. From the referral judgment, we may reproduce the following paragraphs dealing with the relevant Rules: 33. Chapter 26 of the Rules deals with Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Joint Committee of the Houses, as the case may be, on a Bill, the member in charge may move-- (a) that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, as the case may be, be taken into consideration; or (b) that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, as the case may be, be recommitted to the same Select Committee or to a new Select Committee, or to the same Joint Committee or to a new Joint Committee with the concurrence of the Council, either-- (i) without limitation, or (ii) with respect to particular clauses or amendments only, or (iii) with instructions to the Committee to make some particular or additional provision in the Bill, or (c) that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, be circulated or recirculated, as the case may be, for the purpose of eliciting opinion or further opinion thereon: Provided that any member may object to any such motion being made if a copy of the report has not been made available for the use of members for two days before the day on which the motion is made and such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant, for it provides that the report of the Committee together with the minutes of the dissent, if any, is to be presented to the House. Rule 277 stipulates that the report is to have persuasive value. In this context, Rule 277 is worth quoting: 277. Reports to have persuasive value.--The report of a Standing Committee shall have persuasive value and shall be treated as considered advice given by the Committee. The aforesaid Rule makes it quite vivid that the report of the Committee is treated as an advice given by the Committee and it is meant for the Parliament. M. Parliamentary privilege 82. Black's Law Dictionary, 6th Ed., 1990, p. 1197, defines privilege as a particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption. A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others. 83. Parliamentary privilege is defined by author Erskine May in Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament: Parliamentary privilege is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the authority of either House of Parliament of any report, paper, votes or proceedings (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty fourth Amendment) Act 1978 (4) The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament. 87. Sub-article (2) of the aforesaid Article clearly lays the postulate that no member of Parliament shall be made liable to any proceedings in any court in respect of anything he has said in the committee. Freedom of speech that is available to the members on the floor of the legislature is quite distinct from the freedom which is available to the citizens Under Article 19(1)(a) of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim that the House has chosen to take the view that the Judges, the Advocate, and the party have committed contempt by reference to their conduct in the habeas corpus petition pending before the Lucknow Bench of the Allahabad High Court.... 90. The Court further observed: 43.... In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from 'the status dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important constituent of a democratic State, must function not in antinovel nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilization of the democratic way of life in this country. 91. In the said case, the Court was interpreting Article 194 of the Constitution and, in that context, it held: 31.... While interpreting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interval, it was clearly necessary to confer on them the necessary powers, privileges and immunities. There can be little doubt that the powers, privileges and immunities which are contemplated by Clause (3) are incidental powers, privileges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of Clause (3). The Court stated that all the four clauses of Article 194 are not in terms made subject to the provisions contained in Part III. In fact, Clause (2) is couched in such wide terms that in exercising the rights conferred on them by Clause (1), if the legislators by their speeches contravene any of the fundamental rights guaranteed by Part III, they would not be liable for any action in any court. It further said: 36.... In dealing with the effect of the provisions contained in Clause (3) of Article 194, wherever it appears that there is a conflict between the said provisions and the provisions pertaining to fundamental rights, an attempt win have to be made to resolve the said conflict by the adoption of the Rule of harmonious construction.... 92. Dealing with the plenary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to perform its functions without unimpeded use of the services of its members and also for the protection of its members and the vindication of its own authority and dignity. The Court, for the said purpose, referred to May's Parliamentary Practice. Parliamentary privilege conceptually protects the members of Parliament from undue pressure and allows them freedom to function within their domain regard being had to the idea of sustenance of legislative functionalism. The aforesaid protection is absolute. M.2 Judicial review of parliamentary proceedings and its privilege 95. Commenting upon the effect of parliamentary privilege, the House of Lords in the case of Hamilton v. Al Fayed [2001] 1 AC 395 at 407 pointed out that the normal impact of parliamentary privilege is to prevent the Court from entertaining any evidence, cross-examination or submissions which challenge the veracity or propriety of anything done in the course of parliamentary proceedings. 96. With regard to the role of the Court in the context of parliamentary privileges, Lord Brougham, in the case of Wellesley v. Duke of Beaufort [1831] Eng R 809 : (1831) 2 Russ My 639 : (1831) 39 ER 538, has op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the review of parliamentary privilege, Lord Coleridge, C.J., in the case of Bradlaugh v. Gossett (1884) 12 QBD 271 (D), observed that the question as to whether in all cases and under all circumstances the Houses are the sole judges of their own privileges is not necessary to be determined in this case and that to allow any review of parliamentary privilege by a court of law may lead and has led to very grave complications. However, the Law Lord remarked that to hold the resolutions of either House absolutely beyond any inquiry in any court of law may land in conclusion not free from grave complications and it is enough to say that in theory the question is extremely hard to solve. 100. Sir William Holdsworth in his book 19 has also made the following observations with regard to review of Parliamentary privileges: There are two maxims or principles which govern this subject. The first tells us that 'Privilege of Parliament is part of the law of the land;' the second that 'Each House is the judge of its own privileges'. Now at first sight it may seem that these maxims are contradictory. If privilege of Parliament is part of the law of the land its meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Raja Ram Pal (supra), a Constitution Bench, after referring to U.P. Assembly case [Special Reference No. 1 of 1964] (supra), opined: 267. Indeed, the thrust of the decision was on the examination of the power to issue unspeaking warrants immune from the review of the courts, and not on the power to deal with contempt itself. A close reading of the case demonstrates that the Court treated the power to punish for contempt as a privilege of the House. Speaking of the legislatures in India, it was stated: [U.P. Assembly case (Special Reference No. 1 of 1964), 125. There is no doubt that the House has the power to punish for contempt committed outside its chamber, and from that point of view it may claim one of the rights possessed by a court of record. 268. Speaking of the Judges' power to punish for contempt, the Court observed: [U.P. Assembly case (Special Reference No. 1 of 1964),]. We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise of power or privilege by the legislature are for the determination of the legislative authority and not for determination by the courts; (d) The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature; x x x x (f) The fact that Parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power; (g) While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error; (h) The judicature is not prevented from scrutinising the validity of the action of the legislature trespassing on the fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The aforesaid summarization succinctly deals with the judicial review in the sense that the Constitutional Courts are not prevented from scrutinizing the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens; that there is no absolute immunity to the parliamentary proceeding Under Article 105(3) of the Constitution; that the enforcement of privilege by the legislature can result in judicial scrutiny though subject to the restrictions contained in other constitutional provisions such as Articles 122 and 212; that Article 122(1) and Article 212(1) prohibit the validity of any proceedings in the legislature from being called in question in a court merely on the ground of irregularity of procedure, and the proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny. 106. We are presently concerned with the interpretation of two constitutional provisions, namely, Articles 122 and 105. It has been submitted by the learned Counsel on behalf of the Petitioners that the reports of parliamentary committees have various facets, namely, statement of fact mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be used to determine the true meaning and effect of the substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. The same cannot be used as an aid to the construction of the enactment or to show that the legislature did not intend to acquire the proprietary rights vested in the State or, in any way, to affect the State Governments' rights as owners of minerals. A statute, as passed by the Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute. 109. In K.P. Varghese v. Income Tax Officer, Ernakulam and Anr. (1981) 4 SCC 173, the Court, while referring to the budget speech of the Minister, ruled that speeches made by members of legislatures on the floor of the House where a Bill for enacting a statutory provision is being debated are inadmissible for the purpose of interpreting the statutory provision. But the Court made it clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmine the object of the provisions, the mischief sought to be remedied, the social context, the words of the authors and other allied matters. 111. In Additional Commissioner of Income Tax, Gujarat v. Surat Art Silk Cloth Manufacturers' Association, Surat (1980) 2 SCC 31, this Court held: It is legitimate to look at the state of law prevailing leading to the legislation so as to see what was the mischief at which the Act was directed. This Court has on many occasions taken judicial notice of such matters as the reports of parliamentary committees, and of such other facts as must be assumed to have been within the contemplation of the legislature when the Acts in question were passed. 112. We have referred to these authorities to highlight that the reports or speeches have been referred to or not referred to for the purposes indicated therein and when the meaning of a statute is not clear or ambiguous, the circumstances that led to the passing of the legislation can be looked into in order to ascertain the intention of the legislature. It is because the reports assume significance and become relevant because they precede the formative process of a legislation. 113. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of this judgment that in the present case, successive parliamentary committees had found substance in the complaints received that an institution of national importance was suffering from mismanagement and maladministration and in pursuance of such PSC report, the Central Government acted on such findings. 116. In Kuldip Nayar (supra), certain amendments in the Representation of the People Act, 1951 were challenged which had the effect of adopting an open ballot system instead of a secret ballot system for elections to the Rajya Sabha. Defending the amendment, the Union of India submitted a copy of a Report of the Ethics Committee of the Parliament which recommended the open ballot system for the aforesaid purpose. The Committee had noted the emerging trends of cross voting in elections for Rajya Sabha and Legislative Councils in the State. It also made a reference to rampant allegations that large sums of money and other considerations encourage the electorate to vote in a particular manner sometimes leading to defeat of official candidates belonging to their own political party. In this context, the Court took note of the recommendations of the Committee Report while testi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners would further submit that advancing submissions relying on the report would not come within the scope of parliamentary privilege. O. Section 57(4) of the Indian Evidence Act 119. The learned Counsel for the Petitioners propound that Under Section 57(4) of the Evidence Act, the parliamentary standing committee report can be judicially taken note of as such report comes within the ambit of the said provision. 120. To appreciate the stand, it is necessary to scan the relevant Sub-section (4) of Section 57 of the Evidence Act. It reads as follows: 57. Facts of which Court must take judicial notice:- The Court shall take judicial notice of the following facts: x x x x x x x x x x x x x x x x x x x x x x x x (4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any law for the time being in force in a Province or in the State; 121. Section 57 is a part of Chapter III of the Evidence Act which deals with Facts which need not be proved . Section 57 rests on the assumption that the facts scripted in the thirteen subsections are relevant under any on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f being heard in consonance with the principles of natural justice. This, in turn, would give rise to a very peculiar situation as the Respondents would invariably be left with the option either to: (i) accept, without contest, the opinion expressed in the parliamentary standing committee report and the facts stated therein; or (ii) contest the correctness of the opinion of the parliamentary standing committee report and the facts stated therein. In the former scenario, the Respondents at the very least would be put in an inequitable and disadvantageous position. It is in the latter scenario that the Court would be called upon to adjudicate the contentious facts stated in the report. Ergo, whenever a contest to a factual finding in a PSC Report is likely and probable, the Court should refrain from doing so. It is one thing to say that the report being a public document is admissible in evidence, but it is quite different to allow a challenge. 125. It is worthy to note here that there is an intrinsic difference between parliamentary proceedings which are in the nature of statement of a Minister or of a Mover of a bill made in the Parliament for highlighting the purpose of an enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices of the catering cleaners. The Committee had, inter alia, recommended that the government should consider direct employment of catering cleaners by the Railway Administration to avoid their exploitation. 129. In State of Maharashtra v. Milind and Ors. (2001) 1 SCC 4, the issue was whether the tribe of 'Halba-Koshtis' were treated as 'Halbas' in the specified areas of Vidarbha. This Court, in the said case, referred to the report of Joint Parliamentary Committee which did not make any recommendation to include 'Halba-Koshti' in the Scheduled Tribes Order. Again, in Federation of Railway Officers Association (supra), this Court alluded to the reports and recommendations of several committees such as the Railways Reforms Committee in 1984 which recommended the formation of new four Zones; the Standing Committee Report of Parliament on Railway which recommended for creation of new zones on the basis of work load, efficiency and effective management and the Rakesh Mohan Committee Report which had suggested that the formation of additional zones would be of dubious merit and would add substantial cost and be of little value to the system. 130. In Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments, in our considered opinion, do not render any assistance to the controversy in question. 135. We have distinguished the said decisions, as we are disposed to think that a party can always establish his case on the materials on record and the Court can independently adjudicate the controversy without allowing a challenge to Parliamentary Standing Committee report. We think so as the Court has a constitutional duty to strike a delicate balance between the legislature and judiciary. It is more so when the issue does not involve a fundamental right that is affected by parliamentary action. In such a situation, we may deal with the concept of jurisprudential foundational principle having due regard to constitutional conscience. The perception of self-evolved judicial restraint and the idea of jurisprudential progression has to be juxtaposed for a seemly balance. There is no strait-jacket formula for determining what constitutes judicial restraint and judicial progressionism. Sometimes, there is necessity for the Courts to conceptualise a path that can be a wise middle path. The middle course between these two views is the concept of judicial engagement so that the concept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge in the constitutional distribution of governmental powers. 137. In the Indian context, this Court has recognized the comprehensive, progressive and engaging role of Constitutional Courts in a catena of judgments starting from Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244, Vishaka and Ors. v. State of Rajasthan and Ors. (1997) 6 SCC 241, Prakash Singh and Ors. v. Union of India and Ors. (2006) 8 SCC 1, Common Cause (A Regd. Society) v. Union of India 2018 (4) SCALE 1 and Shakti Vahini v. Union of India and Ors. 2018 (5) SCALE 51. In all these judgments, the dynamic and spirited duty of the Supreme Court has been recognized and it has been highlighted that this Court ought not to shy away from its primary responsibility of interpreting the Constitution and other statutes in a manner that is not only legally tenable but also facilitates the progress and development of the avowed purpose of the rights-oriented Constitution. The Constitution itself being a dynamic, lively and ever changing document adapts to the paradigm of epochs. That being the situation, it is also for this Court to take a fresh look and mould the existing precepts to suit the new emerging situations. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion A Reference to the Constitution Bench 141. Two public interest petitions instituted before this Court Under Article 32 of the Constitution in 2012 and 2013 have placed into focus the process adopted for licensing vaccines 20 to prevent cervical cancer. The Petitioners allege that the process of licensing was not preceded by adequate clinical trials to ensure the safety and efficacy of the vaccines. Nearly twenty four thousand adolescent girls are alleged to have been vaccinated in Gujarat and before its bifurcation, in Andhra Pradesh without following safeguards. The trials are alleged to have been conducted under the auspices of a project initiated by the Sixth Respondent. The drugs are manufactured and marketed by the Seventh and Eighth Respondents. Each of them produces pharmaceuticals. The petition calls into question the role of the Drugs Controller General of India and the Indian Council of Medical Research. The administration of the vaccine is alleged to have resulted in serious health disorders. Deaths were reported. 142. On 12 August 2014, a Bench of two judges formulated the questions which would have to be addressed in the course of the proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to a contest between litigating parties. 145. In an order dated 5 April 2017, a two judge Bench of this Court adverted to Articles 105 and 122 of the Constitution and observed thus: 69. The purpose of referring to the aforesaid Articles is 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. What is argued by the learned Counsel for the Petitioners is that there is no question of any kind of judicial review from this Court or attributing anything on the conduct of any of the members of the Committee, but to look at the report for understanding the controversy before us. The submission looking at the report, as we perceive, is nothing but placing reliance thereupon. The view of a member of 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 Parliament inside Parliament or the Committee is not to be adverted to by the court in a lis. 22 146. The referring order notes th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hood in Parliament is punishable by that institution alone. It has been urged that if what is stated in a report of a Parliamentary Standing Committee were to be impeached in a court of law, that would affect the control of the Committee and of Parliament itself. The functions performed by Parliament and by the judiciary as two co-equal branches are, it is urged, completely different. Parliamentary business is either for the purpose of enforcing accountability of the government or to enact legislation. The function of judicial institutions is adjudicatory. Courts resolve a lis on objective satisfaction and have a duty to act judicially. Courts would not, it has been urged, receive as evidence of facts any material whose truth or integrity cannot be assailed in court. 148. On the above conceptual foundation, Mr. Salve urged that the report of a Parliamentary Standing Committee can be relied upon in a judicial proceeding in two exceptional situations: (i) Where it becomes necessary for the court to examine the legislative history of a statutory provision; (ii) As a source from which the policy of the government, as reflected in the statements made by a Minister before the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Gonsalves, the core of the submission (urged by Mr. Salve) is that because his clients object to the findings in the Report, it becomes a contentious issue. Mr. Gonsalves submits that this Court should not allow what in substance is an argument for a black out against the highest court taking notice of the report in its PIL jurisdiction. The submission is that the Court need not treat any of the facts contained in the Report as conclusive except those that are permitted by Section 57 of the Indian Evidence Act 1872. No mandamus is sought that the recommendations of the Parliamentary Committee be enforced. The Court, it has been urged, will not be invited to comment upon the Report even if it were not to agree with the contents of the Report. Learned Counsel urged that the legislative function of Parliament is distinct from the oversight which it exercises over government departments. An issue of parliamentary privileges arises when the court makes a member of Parliament or of a Parliamentary Committee liable in a civil or criminal action for what is stated in Parliament. Such is not the position here. Mr. Gonsalves submitted that in significant respects, our Constitution marks a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution which deals with the Union and form a part of Chapter II, which deals with Parliament. Article 105 is extracted below: 105.(1) Subject to the provisions of this Constitution and to the Rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, [shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.] (4) The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven in Parliament or a committee. Similarly, a person who publishes a report, paper, votes or proceedings under the authority of Parliament is protected against liability in any court. In other respects-that is to say, on matters other than those falling under Clause (1) and (2), Parliament has been empowered to define the powers, privileges and immunities of each of its Houses and of its members and committees. Until Parliament does so, those powers, privileges and immunities are such as existed immediately before the enforcement of the 44th amendment to the Constitution 24 . Clause (4) of Article 105 widens the scope of the protection by making it applicable in relation to persons who have a right to speak in or to take part in the proceedings before the House or its committees. The protection afforded to Members of Parliament is extended to all such persons as well. Committees of the Houses of Parliament are established by and under the authority of Parliament. They represent Parliament. They are comprised within Parliament and are as much, Parliament. 156. Article 118 deals with the Rules of Procedure of Parliament: 118.(1) Each House of Parliament may make Rules fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 119 thus embodies a special provision which enables Parliament to regulate the procedure for and conduct of business in each House in relation to financial matters or for appropriation of monies from the Consolidated Fund. 158. Article 122 contains a bar on courts inquiring into the validity of any proceedings of Parliament on the ground of an irregularity of procedure: 122.(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. Article 122 protects the proceedings in Parliament being questioned on the ground of an irregularity or procedure. In a similar vein, a Member of Parliament or an officer vested with authority under the Constitution to regulate the procedure or the conduct of business (or to maintain order) in Parliament is immune from being subject to the jurisdiction of any Court for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Select committees are appointed by the House to perform a wide range of functions on the House's behalf. Most notably they have become over recent years the principal mechanism by which the House discharges its responsibilities for the scrutiny of government policy and actions. Increasingly this scrutiny work has become the most widely recognized and public means by which Parliament holds government Ministers and their departments to account. The scope of deliberations or inquiries before a Select Committee is defined in the order by which the committee is appointed. When a Bill is referred to a Select Committee, the Bill constitutes the order of reference 26 . Select committees are a microcosm of the House. During the course of their work, Select Committees rely upon documentary and oral evidence 27 : Once received by the committee as evidence, papers prepared for a committee become its property and may not be published without the express authority of the committee. Some committees have agreed to a resolution at the beginning of an inquiry authorizing witnesses to publish their own evidence. Evidence which has been collected during the course of an inquiry is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Committee. Under Rule 92, the Secretary General must print every report of a Select Committee. The report together with the Bill proposed by the Select Committee has to be published in the Gazette. The Rules contemplate the procedure to be followed in the Rajya Sabha for debating and discussing the report and for considering amendments, leading up to the eventual passage of the Bill. In a manner similar to reference of Bills originating in the Rajya Sabha to Select Committees, Bills which are transmitted from the Lok Sabha to the Rajya Sabha may be referred to a Select Committee Under Rule 125, if a motion for that purpose is carried. 164. Chapter XXII of the Rules contains provisions in regard to Department related Parliamentary Standing Committees. Rule 268 stipulates that there shall be Parliamentary Standing Committees related to Ministries/Departments. The Third Schedule elucidates the name of each Committee and the Ministries/Departments which fall within its purview. Under Rule 269, each such Committee is to consist of not more than 31 members: 10 to be nominated by the Chairperson from the Members of the Rajya Sabha and 21 to be nominated by the Speaker from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65. Besides the Department related Standing Committees, there is a General Purposes Committee (Chapter XXIII) whose function is to consider and advise on matters governing the affairs of the House, referred by the Chairperson. Chapter XXIV provides for the constitution of a Committee on Ethics to oversee the moral and ethical conduct of members, prepare a code of conduct, examine cases of alleged breach and to tender advise to members on questions involving ethical standards. E Parliamentary privilege E.1 UK Decisions 166. In the UK, a body of law has evolved around the immunity which is afforded to conduct within or in relation to statements made to Parliament against civil or criminal liability in a court of law. The common law also affords protection against the validity of a report of a Select Committee being challenged in a court. 167. Article 9 of the Bill of Rights, 1689 declares that: ..That the freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament... Construed strictly, the expression out of Parliament will effectively squelch any discussion of the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of supporting a cause of action even though the cause of action itself arises out of something done outside the House. The decision involved a libel action brought against a Member of Parliament for a statement made outside. The court rejected an attempt to rely upon what was stated in Parliament to establish a case of malice against the Defendant. 168. In Pepper (Inspector of Taxes) v. Hart LEX/SCPK/0412/1992 : (1992) 3 W.L.R. 1032, Lord Browne-Wilkinson held for the House of Lords that there was a valid reason to relax the conventional Rule of exclusion under which reference to Parliamentary material, as an aid to statutory construction, was not permissible. The learned Law Lord held: In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivy Council held that cross-examination based on the Hansard was impermissible. In the course of its decision in Prebble, the Privy Council adverted to an Australian judgment of the New South Wales Supreme Court in Reg. v. Murphy ( Murphy ) (1986) 64 A.L.R. 498 which had allowed a witness to be cross examined on the basis of evidence given to a Select Committee on the ground that Article 9 did not prohibit cross-examination to show that the statement of the witness before the committee was false. In order to overcome the situation created by the decision, the Australian legislature enacted the Parliamentary Privileges, Act 1987. Section 16(3) introduced the following provisions: (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w which prevents the questioning of procedures in Parliament. The individual MP enjoys the protection of parliamentary privileges. If he waives such protection, then Under Section 13(2) any questioning of parliamentary proceedings (even by challenging findings...made about his conduct ) is not to be treated as a breach of the privileges of Parliament. The effect of Section 13 was that if a Member of Parliament waived the protection, an assail of proceedings before Parliament would not be regarded as a breach of privilege. 170. The decision in Hamilton is significant for explaining precisely the relationship between parliamentary privilege and proceedings in a Court which seek to challenge the truth or propriety of anything done in parliamentary proceedings. As the Court holds: The normal impact of parliamentary privilege is to prevent the court from entertaining any evidence, cross-examination or submissions which challenge the veracity or propriety of anything done in the course of parliamentary proceedings. Thus, it is not permissible to challenge by cross-examination in a later action the veracity of evidence given to a parliamentary committee. But for the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nisterial decisions announced in Parliament...less readily open to examination than other ministerial decisions : para 51. The Joint Committee observed, pertinently, that That would be an ironic consequence of Article 9. Intended to protect the integrity of the legislature from the executive and the courts, Article 9 would become a source of protection of the executive from the courts. The Prime Minister's statement in the House was relied on for what it says, rather than questioned or challenged . This was permissible. 172. Toussaint is an important stage in the development of the law. A statement made in Parliament by a Minister could be relied upon, not just to explain the history of a law. Where there is a challenge to the exercise of governmental authority on the ground that it is actuated by extraneous reasons, a statement by a Minister in Parliament could be used in court in regard to conduct outside Parliament. The challenge is not to a statement made in Parliament but to governmental action outside. The statement would be relevant to question an abuse of power by government. 173. In Regina (Bradley and Ors. v. Secretary of State for Work and Pensions (Atto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in the UK in Office of Government Commerce v. Information Commissioner (Attorney General intervening) (2009) 3 W.L.R. 627 involved a case where a department of government had carried out reviews into an identity card programme. The case involved a claim for the disclosure of information. The Court observed that the law of parliamentary privilege is based on two principles: the need for free speech in Parliament and separation of powers between the legislature and the judiciary: ...the law of parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our constitution is restricted to the judicial function of government and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... role for courts in the UK to assess the consistency of the provisions of law with reference to the standards of the European Convention. Parliamentary supremacy does not allow the court to strike down legislation. Yet the emergence of standards under the HRA has allowed for a distinct adjudicatory role: to determine the compatibility of domestic law with reference to European Convention standards, adopted by the HRA. To hold that this has not altered the role of courts vis- -vis Parliamentary legislation would be to miss a significant constitutional development. Wheeler v. The Office of the Prime Minister (2014) EWHC 3815 (Admin) was a case where there was a challenge to a decision brought by the government to give notice of the intention of the UK to participate in the Council Framework Decision on the European arrest warrants. It was claimed that the government was precluded from issuing a notification of its intention without holding a referendum. Holding that the plea would breach Parliamentary privilege the Court held: ...In substance, however, the claim is that, unless the House of Commons organises its business in a particular way, and arranges for a vote in a particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent there may be occasion for the courts, when conducting the statutory compatibility exercise, to have regard to matters stated in Parliament. It is a consequence flowing from the Human Rights Act. The constitutionally unexceptionable nature of this consequence receives some confirmation from the view expressed in the unanimous report of the parliamentary Joint Committee on Parliamentary Privilege (1999) (HL Paper 43-I, HC 214-I), p 28, para 86, that it is difficult to see how there could be any objection to the court taking account of something said in Parliament when there is no suggestion the statement was inspired by improper motives or was untrue or misleading and there is no question of legal liability. Recourse to such background information would enable the court to better understand the law and would not amount to a breach of parliamentary privilege. 176. The decision of the Privy Council in Owen Robert Jennings v. Roger Edward Wyndham Buchanan (2004) UKPC 36 arose from the Court of Appeal in New Zealand. The judgment recognises that while the protection conferred by Article 9 of the Bill of Rights should not be whittled away, yet as the Joint Committee on Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a parliamentarian will not be in issue. Nor will his state of mind, motive or intention when saying what he did in Parliament. 177. The evolution of the law in the UK indicates the manner in which the protection Under Article 9 of the Bill of Rights has been transformed. There are essentially three principles which underlie the debate. The first is the importance of the freedom of speech in Parliament. The absolute protection which is afforded to what is done or spoken by a Member of Parliament in Parliament is an emanation of the need to protect freedom of speech in Parliament. The second principle which is at work is the separation of powers between Parliament and the courts. This principle recognizes that liability for a falsehood spoken in Parliament lies within the exclusive control of Parliament. A Member of Parliament cannot be held to account in a court of law for anything which is said or spoken in Parliament. A speech in Parliament would not attract either a civil or criminal liability enforceable in a court of law. The third principle emphasises that debates in Parliament have a public element. Public debate is the essence of and a barometer to the health of democr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se principles imparts sanctity to them in a manner which only the text of a fundamental written charter for governance can provide. Separation of powers is part of the basic structure. Our precedent on the subject notices the qualitative difference between Parliamentary democracy in the UK and in India. The fundamental difference arises from the supremacy of the Indian Constitution which subjects all constitutional authorities to the mandate of a written Constitution. 179. The locus classicus on the subject of parliamentary privileges is the seven-judge Bench decision in Re: Powers, Privileges and Immunities of State Legislatures 31 . It was argued before this Court that the privilege of the House to construe Article 194(3) and to determine the width of the privileges, powers and immunities enables the House to determine questions relating to the existence and extent of its powers and privileges, unfettered by the views of the Supreme Court. Chief Justice Gajendragadkar, held that it was necessary to determine whether even in the matter of privileges, the Constitution confers on the House a sole and exclusive jurisdiction. The decision recognizes that while in the UK, Parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 105. The judgment of Justice Bharucha (for himself and Justice S. Rajendra Babu) thus represents the view of the majority. The minority view was of Justices S.C. Agrawal and Dr. A.S. Anand. In construing the scope of the immunity conferred by Article 105(2), Justice Bharucha adverted to judgments delivered by courts in the United Kingdom (including those of the Privy Council noted earlier 32 ). Interpreting Article 105(2), Justice Bharucha observed thus: 133. Broadly interpreted, as we think it should be, Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament. In that case, the charge in a criminal prosecution for offences Under Section 120B of the Penal Code and the Prevention of Corruption Act, 1988 was that there was a criminal conspiracy between alleged bribe givers and bribe takers (who were members of the legislature) to defeat a motion of no confidence by obtaining illegal gratification in pursuance of which bribes were given and accepted. The charge did not refer to the votes that the alleged bribe takers had actually cast upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho accepts a bribe for speaking or giving a vote in Parliament arises independent of the making of the speech or the giving of the vote and hence is not a liability in respect of anything said or any vote given in Parliament. The correctness of the view in the judgment of the majority does not fall for consideration in the present case. Should it become necessary in an appropriate case in future, a larger bench may have to consider the issue. 181. The judgment of the Constitution Bench in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha (2007) 3 SCC 184, has a significant bearing on the issues which arise in the present reference. Chief Justice YK Sabharwal, delivering the leading opinion on behalf of three judges dealt with the ambit of Article 105 in relation to the expulsion of a member and the extent to which such a decision of the Houses of Parliament is amenable to judicial review. The judgment notices that parliamentary democracy in India is qualitatively distinct from the UK. In defining the nature and extent of judicial review in such cases, Chief Justice Sabharwal observed that it is the jurisdiction of the court to examine whether a particular privilege claimed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnance based on parliamentary sovereignty. This has no application to India, where none of the organs created by the Constitution is sovereign, and each is subject to the checks and controls provided by the Constitution. The decision in Raja Ram Pal holds that Article 122(1) embodies the twin test of legality and constitutionality. This Court has categorically rejected the position that the exercise of powers by the legislature is not amenable to judicial review: 389. ...there is no scope for a general Rule that the exercise of powers by the legislature is not amenable to judicial review. This is neither the letter nor the spirit of our Constitution. We find no reason not to accept that the scope for judicial review in matters concerning parliamentary proceedings is limited and restricted. In fact, this has been done by express prescription in the constitutional provisions, including the one contained in Article 122(1). But our scrutiny cannot stop, as earlier held, merely on the privilege being found, especially when breach of other constitutional provisions has been alleged. 36 The Court will not exercise its power of judicial review where there is merely an irregular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two systems lies in the fact that parliamentary sovereignty in the Westminster form of government in the UK has given way, in the Indian Constitution, to constitutional supremacy. Constitutional supremacy mandates that every institution of governance is subject to the norms embodied in the constitutional text. The Constitution does not allow for the existence of absolute power in the institutions which it creates. Judicial review as a part of the basic features of the Constitution is intended to ensure that every institution acts within its bounds and limits. The fundamental rights guaranteed to citizens are an assurance of liberty and a recognition of the autonomy which inheres in every person. Hence, judicial scrutiny of the exercise of parliamentary privileges is not excluded where a fundamental right is violated or a gross illegality occurs. In recognizing the position of Parliament as a coordinate institution created by the Constitution, judicial review acknowledges that Parliament can decide the expediency of asserting its privileges in a given case. The Court will not supplant such an assertion or intercede merely on the basis of an irregularity of procedure. But where a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated to have been overshadowed in the UK by the more dominant constitutional principles of parliamentary sovereignty and the Rule of law . For instance, in the UK, Ministers of Crown are both part of the executive and members of the Parliament. Until the Constitutional Reform Act, 2005 the Lord Chancellor was a member of the Cabinet and was eligible to sit as a judge in the Appellate Committee of the House of Lords. The Judicial Committee of the House of Lords was the highest court, even though the House constituted the Upper House of the legislature. In the enforcement of parliamentary privileges, the House exercises judicial functions. Delegated legislation enables the executive to exercise legislative functions. 186. Many contemporary scholars have differed on the normative importance of the doctrine of separation. One view is that while a distinct legislature, executive and judiciary can be identified as a matter of practice, this is not a mandate of the unwritten Constitution. The statement that there is a separation is construed to be descriptive and not normative 39 . On the other hand, other scholars regard the doctrine as a fundamental underlying constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from being a one branch-one function approach 45 with limited exceptions, to a concept which involves an integration of the 'division of work' and 'checks and balances' 46 . The primary aim of the doctrine today is to ensure the accountability of each wing of the State, while ensuring concerted action in respect of the functions of each organ for good governance in a democracy. The doctrine of separation of power has developed to fulfill the changing needs of society and its growing necessities. Many of these considerations are significantly different from those which were prevalent when Montesquieu originally formulated the doctrine. 188. In 1967, MJC Vile in his book titled 'Constitutionalism and the Separation of Powers' 47 defined the 'pure doctrine' of separation of powers thus: [a] 'pure doctrine' of the separation of powers might be formulated in the following way: It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive, and the judiciary. To each of these three branches, there is a corresponding ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, necessitating co-operation between the branches of the government in furtherance of the common objective of good governance. Kavanagh explains this as follows: In some contexts, the interaction between the branches will be supervisory, where the goal is to check, review and hold the other to account. At other times, the interaction will be a form of cooperative engagement where the branches have to support each other's role in the joint endeavor. 54 Jeremy Waldron has dealt with the relationships among officials or institutions in a State. He proposes that separation of powers is not just a principle involving the division of labour and the distribution of power but also includes inter-institutional relationships between the three branches when carrying out their distinct roles as part of a joint enterprise. This is in order to facilitate, what Waldron called the 'Principle of Institutional Settlement'. 55 Further, inter-institutional comity, which is the respect that one branch of the state owes to another, is also a significant factor, which calls for collaboration among branches of the government to ensure that general public values such as welfare, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of its agencies and the rapid growth of organizations which can neither be classified as exclusively public or private bodies. These modern systems of government and the existence and rapid rise of supranational organizations defy the traditional three-way division of powers. Administrative bodies are not defined by a uniform design, and exercise institutional fluidity in a manner which has come to characterize the administrative state's organizational complexity: In a single instance, they exercise powers and perform functions that might have been formerly classified as executive, judicial or legislative in nature. 59 In this view, the modern State is distinctly different from Locke's seventeenth century Model and Montesquieu's eighteenth century ideas: The state is now dirigiste, discretionary, and broadly dispersed. 60 190. Carolan thus proposes that to be suitable, a theory of institutional justice must be rooted in the principle of non-arbitrariness. He believes that a more suitable approach of classification of institutions would be not by functions, but by constituencies, and the sole constituency in this legal framework is the individual citizen. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court held that whether or not the Constitution brings about a distinct and rigid separation of powers , judicial review is an inseparable part of the judicial function. Whether legislative authority has extended beyond its constitutional boundaries or the fundamental rights have been contravened cannot be decided by the legislature, but is a matter entrusted exclusively to judicial decision. In Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, separation of powers was regarded as a feature of the basic structure of the Indian Constitution. Chief Justice Sikri held: 292. The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features: (1) Supremacy of the Constitution; (2) Republican and Democratic form of Government; (3) Secular character of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of Rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs--legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of power. 66 192. The doctrine of separation restrains the legislature from declaring a judgment of a court to be void and of no effect. However, in the exercise of its law making authority, a legislature possessed of legislative competence can enact validating law which remedies a defect pointed out in a judgment of a court. While the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Court held that while the concept of separation of powers is not found explicitly in a particular constitutional provision, it is inherent in the polity the Constitution has adopted . The Constitution Bench perceived that there is a link between separation and the need to ensure accountability of each branch of government. While the Constitution does not prohibit overlapping functions, what it prohibits is the exercise of functions by a branch in a way which results in wresting away of the regime of constitutional accountability. The Court held that by allowing funds to be allocated to Members of Parliament for addressing the development needs of their constituencies, the MPLAD Scheme does not breach the doctrine of separation of powers. The administration of the scheme was adequately supervised by district authorities. 195. In Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1, Justice Madan B Lokur observed that separation of powers does not envisage that each of the three organs of the State-the legislature, executive and judiciary-work in a silo. The learned judge held: 678. There is quite clearly an entire host of parliamentary and legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion on the exercise of the legislative prerogative in this regard. The framing of the Amendment Bill; reference of the same to the Parliamentary Standing Committee; the consideration thereof by the said Committee; the report prepared along with further steps that are required to be taken and the time-frame thereof are essential legislative functions which should not be ordinarily subjected to interference or intervention of the Court. The constitutional doctrine of separation of powers and the demarcation of the respective jurisdiction of the Executive, the Legislature and the Judiciary under the constitutional framework would lead the Court to the conclusion that the exercise of the amendment of the Act, which is presently underway, must be allowed to be completed without any intervention of the Court. Any other view and any interference, at this juncture, would negate the basic constitutional principle that the legislature is supreme in the sphere of law-making. Reading down a statute to make it workable in a situation where an exercise of amendment of the law is pending, will not be justified either. A perception, however strong, of the imminent need of the law engrafted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution, it is an accepted principle of jurisprudence that the judiciary has the authority to test the validity of legislation. Legislation can be invalidated where the enacting legislature lacks legislative competence or where there is a violation of fundamental rights. A law which is constitutionally ultra vires can be declared to be so in the exercise of the power of judicial review. Judicial review is indeed also a part of the basic features of the Constitution. Entrustment to the judiciary of the power to test the validity of law is an established constitutional principle which co-exists with the separation of powers. Where a law is held to be ultra vires there is no breach of parliamentary privileges for the simple reason that all institutions created by the Constitution are subject to constitutional limitations. The legislature, it is well settled, cannot simply declare that the judgment of a court is invalid or that it stands nullified. If the legislature were permitted to do so, it would travel beyond the boundaries of constitutional entrustment. While the separation of powers prevents the legislature from issuing a mere declaration that a judgment is erroneous or inval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee in framing its recommendations for legislation cannot be subject to a challenge before a court of law. The advice tendered is, after all, what it purports to be: it is advice to the legislating body. The correctness of or the expediency or justification for the advice is a matter to be considered by the legislature and by it alone. 201. Department related standing committees are constituted by Parliament to oversee the functioning of ministries/departments of government. It is through the work of these committees that Parliament exacts the accountability of the executive. It is through the work of these committees that Parliament is able to assess as to whether the laws which it has framed are being implemented in letter and spirit and to determine the efficacy of government policies in meeting the problems of the day. 202. The contents of the report of a parliamentary committee may have a bearing on diverse perspectives. It is necessary to elucidate them in order to determine whether, and if so to what extent, they can form the subject matter of consideration in the course of adjudication in a court. Some of these perspectives are enumerated below: (i) The report o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st as a reflection of the fact that such a statement was made before the committee. Similarly, that a statement was made before the committee-as a historical fact-may be taken note of by the court in a situation where the making of the statement itself is not a contentious issue. 205. In matters involving public interest which come up before the court, a grievance is often made of the violation of the fundamental rights of persons who by reason of poverty, ignorance or marginalized status are unable to seek access to justice. Public interest litigation has been perceived as social action litigation because a relaxation of the Rules of standing has enabled constitutional courts to reach out to those who have suffered discrimination and prejudice. Whatever be the source of such discrimination-the feudal and patriarchal structures of Indian society being among them-public interest litigation has enabled courts to develop flexible tools of decision making and pursue innovative remedies. The writ of continuing mandamus is one of them. In the process, the violation of the fundamental rights of those groups of citizens who may not be able to seek access to justice is sought to be remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee and the adjudication by the court. To deprive the court of the valuable insight of a parliamentary committee would amount to excluding an important source of information from the purview of the court. To do so on the supposed hypothesis that it would amount to a breach of parliamentary privilege would be to miss the wood for the trees. Once the report of the parliamentary committee has been published it lies in the public domain. Once Parliament has placed it in the public domain, there is an irony about the executive relying on parliamentary privilege. There is no reason or justification to exclude it from the purview of the material to which the court seeks recourse to understand the problem with which it is required to deal. The court must look at the report with a robust common sense, conscious of the fact that it is not called upon to determine the validity of the report which constitutes advice tendered to Parliament. The extent to which the court would rely upon a report must necessarily vary from case to case and no absolute Rule can be laid down in that regard. 207. There may, however, be contentious matters in the report of a parliamentary committee in regard to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a particular statement is made in Parliament and the correctness of what is stated on a question of fact. The former could be relied upon. However, the truth of a disputable question of fact would have to be independently proved before the court. Justice HR Khanna observed thus: 33. We find that Section 57, Sub-section (4) of the Evidence Act not only enables but enjoins courts to take judicial notice of the course of proceedings in Parliament assuming, of course, that it is relevant. It is true that the correctness of what is stated, on a question of fact, in the course of parliamentary proceedings, can only be proved by somebody who had direct knowledge of the fact stated. There is, however, a distinction between the fact that a particular statement giving the purpose of an enactment was made in Parliament, of which judicial notice can be taken as part of the proceedings, and the truth of a disputable matter of fact stated in the course of proceedings, which has to be proved aliunde, that is to say, apart from the fact that a statement about it was made in the course of proceedings in Parliament (see: Rt. Hon'ble Jerald Lord Strickland v. Carmelo Mifud Bonnici [AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India 1988 (Supp.) SCC 401, the court observed thus: 31. The Lok Sabha Debates and the Rajya Sabha Debates are the journals or the reports of the two Houses of Parliament which are printed and published by them. The court has to take judicial notice of the proceedings of both the Houses of Parliament and is expected to treat the proceedings of the two Houses of Parliament as proved on the production of the copies of the journals or the reports containing proceedings of the two Houses of Parliament which are published by them. 76 These observations were in the context, specifically, of the provisions of the Evidence Act, including Section 57(4). The court held that the production of debates of the Lok Sabha and Rajya Sabha containing the proceedings of the two Houses of Parliament, relating to the period between the time when the resolutions were moved in each of the two Houses and the time when the resolutions were duly adopted amounted to proof of the resolutions. The court was required to take judicial notice Under Section 57. H Conclusion 209. The issue which has been referred to the Constitution Bench is whether the report of a Parliamentary Standing C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice. We no longer live in a political culture based on the subordination of individuals to the authority of the State. Our interpretation of the Constitution must reflect a keen sense of awareness of the basic change which the Constitution has made to the polity and to its governance. 211. A distinguished South African Judge, Albie Sachs has spoken of the importance of understanding the value of constitutional transformation. In his book titled 'The Strange Alchemy of Life and Law' 77 , explaining the role of the constitutional court, Sachs has this to say: It is difficult to analyse the impact that court decisions have on actual historical events. It may well be that the publicity given to the case, and the evidence and arguments presented had more impact on public life than did the actual decision. Yet any amount of forensic combat, however bitter and prolonged, is better than a single bullet. Submitting the harsh conflicts of our times to legal scrutiny-conducted transparently and in the light of internationally accepted values of fairness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of Parliament is sought to be made liable for what has been said or for a vote tendered in the course of a debate. The correctness or validity of the report of a Parliamentary Committee is not a matter which can be agitated before the Court nor does the Court exercise such a function. Where an issue of fact becomes contentious, it undoubtedly has to be proved before a court independently on the basis of the material on the record. In other words, where a fact referred to in the report of the Parliamentary Committee is contentious, the court has to arrive at its own finding on the basis of the material adduced before it. 214. Parliamentary Committees are an intrinsic part of the process by which the elected legislature in a democracy exacts accountability on the part of the government. Department related Parliamentary Standing Committees undertake the meticulous exercise of scrutinizing the implementation of law, including welfare legislation and the performance of the departments of the State. The purpose of law is to promote order for the benefit of the citizen and to protect rights and entitlements guaranteed by the Constitution and by statute. Access to justice as a means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or given; and (iv) When a matter before the court assumes a contentious character, a finding of fact by the court must be premised on the evidence adduced in the judicial proceeding as explained in paragraphs 67 and 73. 215. The issues framed for reference are accordingly answered. 216. The proceedings may now be placed before the Hon'ble Chief Justice for assignment of the case for disposal. Ashok Bhushan, J. 217. This Constitution Bench is required to answer some important Constitutional issues which also involve issues relating to delicate balance between the Parliament and the Judiciary. The Hon'ble Chief Justice has circulated His Lordships' judgment which has been carefully read by me. Although I am in substantial agreement with the conclusions arrived by My Lord the Chief Justice, but looking to the importance of the issues involved I have penned my own views conclusions. 218. Whether acceptance and reliance on a Parliamentary Standing Committee Report by this Court while hearing a Public Interest Writ Petition amount to breach of any privilege of the Parliament, is the sum substance of the questions referred to this Constitution Bench. Dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n organisation sent representations and also conducted a fact finding enquiry. On 15th April, 2010, Government of India appointed a Committee to enquire into alleged irregularities in the conduct of studies using Human Papilloma Virus(HPV) vaccine by PATH in India. The final report of Committee was submitted on 15.02.2011. Enquiry committee noted several discrepancies. The Parliamentary Standing Committee of Department of Health Research, Ministry of Health and Family Welfare while examining the demand for grants (2010-11) of Department of Health Research took up the issue of trial of HPV vaccine on children in Districts of Khammam, Andhra Pradesh and Vadodara, Gujarat. Parliamentary Standing Committee (hereinafter referred to as P.S.C. ) deliberated on the subject and held various meetings. The Committee heard the UOI, ICMR, Department of Drugs Controller General of India and also took oral evidence. The Departmental Standing Committee submitted its report (72nd Report) to Rajya Sabha on 30th August, 2013 which was also laid on the table of Lok Sabha on 30th August, 2013. The P.S.C. found various shortcomings and lapses of the Government Departments, ICMR as well as on part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in course of hearing of this case which pertains to exercise of power of judicial review when a report of the Parliamentary Standing Committee is filed before the Court. After hearing the parties on 18.11.2015 the two Judge Bench of this Court by a detailed order dated 05.04.2017 has referred two questions as noted above to be answered by a Constitution Bench. SUBMISSIONS 225. We have heard Shri Colin Gonsalves, learned senior advocate for Petitioner in Writ Petition (C) No. 558/2012 and Shri Anand Grover, learned senior advocate for Petitioner in Writ Petition (C) No. 921 of 2013. Shri Harish Salve and Shri Gourab Banerji, learned senior advocates have appeared for Respondent No. 8-MSD Pharmaceuticals Private Limited. Shri Shyam Divan, learned senior advocate has appeared for PATH International. We have also heard Shri K.K. Venugopal, learned Attorney General of India. 226. Shri Salve submits that Parliamentary Committee Report can neither be looked into nor relied by this Court. Shri Salve, however, submits that there are two areas where Parliamentary Committee Report can be relied i.e. (a) legislative history of a statute and (b) Minister's statement in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no rigid separation of powers in the three wings of States but each wing of the States works in its own sphere. Parliament is supreme in its proceedings which proceedings cannot be questioned in any Court of Law. The Parliamentary Reports cannot be made subject matter of an issue in any proceeding of Court of Law or even in a public interest litigation. He submits that all wings of the States have to work in their own spheres so as not to entrench upon the sphere allotted to other wing of State. He submitted that referring to a report of Parliamentary Committee is a sensitive issue of jurisdiction between Courts and Parliament which should be avoided by this Court. When the courts cannot adjudicate on Parliamentary Committee Report, what is the use of looking into it. Referring to Section 57(4) of the Evidence Act, 1872 which provides that the Court shall take judicial notice of the proceedings of the Parliament and the Legislature established under any law for the time being in force, he submits that the substitutions were made in Sub-clause (4) of Section 57 by Adaptation Order of 1950 which were orders issued by the President and were not amendments made by Parliament in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Parliament nor Petitioner is asking to initiate any proceeding against any member of Parliament. He submits that facts noticed and stated in Parliamentary report can very well be relied. The Parliament by its procedure permits the Committee Report to be filed in the Court, hence there is no prohibition in the Court in looking into the Parliamentary Report. 231. It is further submitted that in the present case, it is the Executive, which is trying to protect itself taking shield of Parliamentary privileges whereas Parliament does not take objection or offence of its reports being relied and used. When the reports are published by Parliament the process is over and thereafter there is no prohibition on reports being filed as evidence and used by all concern. This Court should follow the principles of the comity of the institution instead of relying on principles of separation of power and conflict of the institution. Under the Right to Information Act, the Parliamentary Reports can be sought for and used by all concern. The present is an age of transparency, in which period the Respondent cannot be heard in saying that benefits of report should be blacked out from the courts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anyone traverses or controverts a Parliamentary Committee Report, it is not in the interest of the comity of the institutions. He submits that references to Parliamentary proceedings are possible only in two areas i.e. in interpreting a Legislation and Statement of a Minister. He submits that entire report is to be examined as a whole. The answering Respondent in Writ Petition (C) No. 921 of 2013 in its counter affidavit has challenged the veracity of the findings of the Parliamentary Standing Committee Report. The Parliamentary Committee is the functional organ of the Parliament which also enjoys the privileges and immunity provided Under Article 105(2) of the Constitution of India. The reports of Parliamentary Committee are not amenable to judicial review. Parliamentary Standing Committee Reports are not to be relied in court proceedings in as much as traversing or contesting the content of report, it may cause breach of Parliamentary privileges Under Article 105 and Article 122 of the Constitution of India. Challenge to such reports may invite contempt proceedings by Parliament for breach of privileges. The Parliamentary reports cannot be basis for any action in law both crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liamentary Practice', Twenty-fourth Edition' has elaborately dealt with the privileges of Parliament and all other related aspects. In Chapter XII of the Book, Erskine May states about what constitutes the privilege: Parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament; and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by stature. 241. The term 'parliamentary privilege' refers to the immunity and powers possessed by each of the Houses of the Parliament and by the Members of the Parliament, which allow them to carry out their parliamentary functions effectively. Enumerating few rights and immunities Erskine May states: Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its Members. Other r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the country. The Government of India Act, 1919 and 1935 constitute successive milestone in the development of the legislative bodies in India. The Government of India Act, 1935 has been referred to as Constitution Act by Privy Council. 244. Dr. B.R. Ambedkar, the Chairman of the Drafting Committee while debating on draft Article 85(Article 105 of the Constitution of India) and draft Article 169(Article 194 of the Constitution of India) has referred to Erskine May's 'Parliamentary Practice' as a source book of knowledge with regard to immunities, privileges of Parliament. The Constitution of India by Article 105 and Article 194 gives constitutional recognition of parliamentary privileges. We now proceed to examine the constitutional provisions pertaining to parliamentary privileges. 245. Article 105 of the Constitution of India deals with 'powers, privileges and immunities of Parliament and its Members whereas Article 194 deals with the powers, privileges and immunities of State Legislatures and their Members. Both the provisions are identical. To understand the constitutional scheme, it is sufficient to refer to Article 105 of the Constitution of India. Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or any committee thereof. In the present case, we are called upon to examine the parliamentary privileges with regard to Parliamentary Standing Committee's Report. According to Sub-clause (2) of Article 105 of Constitution of India no Member of Parliament can be held liable for anything said by him in Parliament or in any committee. The reports submitted by Members of Parliament is also fully covered by protection extended Under Sub-clause (2) of Article 105 of the Constitution of India. Present is not a case of any proceeding against any Member of the Parliament for anything which has been said in the Parliament Committee's Report. 248. We now proceed to Sub-clause (3) of Article 105 of the Constitution of India. Sub-clause (3) of Article 105 of the Constitution of India begins with the words 'in other respects'. The words 'in other respects' clearly refer to powers, privileges and immunities which are not mentioned and referred to in Sub-clauses (1) and (2) of Article 105. Sub-clause (3) of Article 105 makes applicable the same powers, privileges and immunities for Indian Parliament which were enjoyed by the House of Commons at the time of enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the United Kingdom while preserving the position as it stood on the date of the coming into force of the said amendment. B. PRIVILEGES OF HOUSE OF COMMONS 250. What are the privileges of the House of Commons which are also enjoyed by the Indian Parliament by virtue of Sub-clause (3) of Article 105 of the Constitution of India need to be examined for answering the issues which have arisen in the present case. 251. While dealing with the privileges of Parliament Erskine May in his treatise 'Parliamentary Practice' enumerates the following privileges: 1. Freedom of Speech 2. Freedom from Arrest 3. Freedom of Access 4. Favourable Construction 5. Privileges with respect to membership of the House 6. Power of commitment for breach of privilege or contempt. 252. Halsbury's Laws of England in Fifth Edition Vol. 78, while dealing with the privileges etc. claimed by both the Houses 'enumerates privileges': 1. Exclusive cognisance of proceedings 2. Freedom of Speech and proceedings in Parliament 3. Contempts 4. Freedom from Arrest 5. Protection of witnesses and others before Parliament 6. Power to exclude the public. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Statutes: Freedom from arrest of members in civil cases during the continuance of the session of the House and forty days before its commencement and forty days after its conclusion CPS Section 135 A-For further details, see sub-head 'Freedom from Arrest in Civil Cases' infra. (iii) Privileges specified in the Rules of Procedure and Conduct of Business of the House: Right of the House to receive immediate information of the arrest, detention, conviction, imprisonment and release of a member Rules 229 and 230. Exemption of a member from service of legal process and arrest within the precincts of the House Rules 232 and 233. Prohibition of disclosure of the proceedings or decisions of a secret sitting of the House Rule 252. (iv) Privileges based upon Precedents: Members or officers of the House cannot be compelled to give evidence or to produce documents in courts of law, relating to the proceedings of the House without the permission of the House 1R (CPR-1LS). Members or officers of the House cannot be compelled to attend as witness before the other House or a committee thereof or before a House of State Legislature or a committee thereof without the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. F.W. Maitland in the 'Constitutional History of England' while writing on 'The Work of Parliament' stated the following: ....But we ought to notice that the Houses of parliament do a great deal of important work without passing statutes or hearing causes. In the first place they exercise a constant supervision of all governmental affairs. The ministers of the king are expected to be in parliament and to answer questions, and the House may be asked to condemn their conduct..... 259. Dr. Subhash C. Kashyap in 'Parliamentary Procedure,' Second Edition while discussing the functions of the Parliament stated: Over the years, the functions of Parliament have no longer remained restricted merely to legislating. Parliament has, in fact emerged as a multi-functional institution encompassing in its ambit various roles viz. developmental, financial and administrative surveillance, grievance ventilation and redressal, national integrational, conflict resolution, leadership recruitment and training, educational and so on. The multifarious functions of Parliament make it the cornerstone on which the edifice of Indian polity stands and evokes admiration from ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter referred to as the Speaker), may alter the said Schedule from time to time in consultation with each other. 263. Rule 270 deals with functions of the Standing Committees which are to the following effect: 270. Functions Each of the Standing Committees shall have the following functions, namely: (a) to consider the Demands for Grants of the related Ministries/Department and report thereon. The report shall not suggest anything of the nature of cut motions; (b) to examine Bills, pertaining to the related Ministries/Departments, referred to the Committee by the Chairman or the Speaker, as the case may be, and report thereon; (c) to consider the annual reports of the Ministries/Departments and report thereon; and (d) to consider national basic long term policy documents presented to the Houses, if referred to the Committee by the Chairman or the Speaker, as the case may be, and report thereon: Provided that the Standing Committees shall not consider matters of day-to-day administration of the related Ministries/Departments. 264. Rule 277 provides that the Report of the Standing Committee shall have persuasive value. Schedule III of the Rules deals with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers of British Parliament have permitted the publication of its proceedings in Hansard. As early as, in the year 1868 Cock Burn, CJ. in Wason v. Walter, 1869 QB Vol. 4 at p. 73 held that it is of paramount public and national importance that the proceedings of the House of Parliament shall be communicated to the people. Cock Burn, CJ, at page 89 held the following: ....It seems to us impossible to doubt that it is of paramount public and national importance that the proceedings of the houses of parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends. Where would be our confidence in the government of the country or in the legislature by which our laws are framed, and to whose charge the great interests of the country are committed,-where would be our attachment to the constitution under which we live,-if the proceedings of the great council of the realm were shrouded in secrecy and concealed from the knowledge of the nation? How could the communications between the representatives of the people and their constituents, which are so ess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in a newspaper of a substantially true report of any proceedings of either House of Parliament unless the publication is proved to have been made with malice. (2) Nothing in Sub-section (1) shall be construed as protecting the publication of any matter, the publication of which is not for the public good. 270. By Constitution (Forty Fourth Amendment) Act, 1978, Article 361A was inserted in the Constitution providing for 'protection of publication of proceedings by Parliament and State Legislatures'. Article 361A is as follows: Article 361A. Protection of publication of proceedings of Parliament and State Legislatures.- (1) No person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature of a State, unless the publication is proved to have been made with malice: Provided that nothing in this Clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence in a court of law in respect of the proceedings in that House or committees thereof or for production of any document connected with the proceedings of that House of Committees thereof, or in the custody of the officers of that House. According to the First Report of the Committee of Privileges of the Second Lok Sabha, no member or officer of the House should give evidence in a Court of law in respect of any proceedings of the House or any Committees of the House or any other document connected with the proceedings of the House or I n the custody of the Secretary-General without the leave of the House being first obtained . When the House is not in session, the Speaker may, in emergent cases, allow the production of relevant documents in courts of law in order to prevent delays in the administration of justice and inform the House accordingly of the fact when it reassembles or through the Bulletin. However, in case the matter involves any question of privilege, especially the privilege of a witness, or in case the production of the document appears to him to be a subject for the discretion of the House itself, the Speaker may decline to grant the required permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling with requests for documents relating to proceedings of the House or any Committee of the House. ***** III. Procedure for dealing with requests from courts or investigating agencies for documents other than those relating to the proceedings of the House or any Committee of the House, which are in the custody of the Secretary-General. ***** IV. The question whether a document relates to the proceedings of the House or any Committee of the House shall be decided by the Speaker and his decision shall be final. V. Documents relating to the proceedings of the House or any Committee of the House which are public documents should be taken judicial notice of and requests for certified copies thereof may not be ordinarily made unless there are sufficient reasons for making such requests. VI. Procedure after the Report of the Committee of Privileges has been presented or laid on the Table of the House. 275. Learned Counsel for the Respondents in his compilation has given Third Edition (2017) of Raj Sabha at Work, wherein at page 257 the subject Production of documents before a Court is mentioned. From page 257 to page 259 various instances have also been mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States; xxx xxx xxx xxx (13) xxx xxx xxx xxx In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so. 278. A plain reading of Section 57 Sub-section (4) makes it clear that the course of proceeding of Parliament and the Legislature, established under any law are facts of which judicial notice shall be taken by the Court. 279. Shri Shyam Divan in reference to Section 57 submits that Parliamentary Standing Committee Reports are not covered by expression course of proceeding of Parliament , hence no benefit can be taken by the Petitioner of this provision. The expression course of proceeding of Parliament is an expression of vide import. The Parliamentary Committee is defined in Rule 2 of Rules of Lok Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y State of private documents. 285. According to Section 74 documents forming the acts, or records of the acts of Legislature of any part of India is a public document. We have noticed above that Parliament has already adopted report of privilege committee that for those documents which are public documents within the meaning of Indian Evidence Act, there is no requirement of any permission of Speaker of Lok Sabha for producing such documents as evidence in Court. We may, however, hasten to add that mere fact that a document is admissible in evidence whether a public or private document does not lead to draw any presumption that the contents of the documents also are true and correct. 286. In this context, reference is made to a judgment of the Privy Council reported in Right Honourable Gerald Lord Strickland v. Carmelo Mifsud Bonnici AIR 1935 PC 34. In the above case reports of the debates in the Legislative Assembly containing speeches of the Appellant and the publication were produced. The Privy Council in the above reference has expressed opinion that debates can only be evidence of what was stated by the speakers in the Legislative Assembly, and are not evidence of any f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the suit transaction was a part of 15% arrangement, has not been found by JPC. There is no finding to the effect that the suit transaction was part of such an arrangement. Therefore, I am of the view that Can Bank Mutual Fund is entitled to tender the Report of JPC as evidence only to establish that there was a 15% arrangement between Standard Chartered Bank and HPD. The issue as to whether the suit transaction was a part of such a practice/arrangement will have to be established independently by Can Bank Mutual Fund. However, in order to prove that issue, the Report will be one of the important pieces of evidence. At this stage, I am concerned with admissibility. The correctness of the findings will ultimately depend on the entire view of the matter. The question as to what weight the Court should give to the findings of JPC will ultimately depend on the totality of circumstances brought before the Court. 289. In paragraph 6 ultimately the Court held: 6. Accordingly, I hold that the Report of JPC is a public document Under Section 74(1)(iii) of the Evidence Act. Secondly, that the said Report is admissible as evidence of the existence of 15% arrangement between St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other privileges. Thus, the privileges which our Parliament and State Legislatures enjoy are privileges enjoyed by House of Commons of the United Kingdom at the time of commencement of the Constitution. 292. In early period of history of British Parliament, at the commencement of every Parliament, it has been the custom, the Speaker sought by humble petition the rights and privileges. The petitions were granted by Her Majesty's by conferring upon the power, the privileges asked for. In subsequent period, the Common started insisting that the privileges are inherent in the House. The first major recognition and acceptance of Parliamentary privileges found reflected in the Bill of Rights, 1688. The Bill of Rights, 1688 was an Act declaring the rights and liberties of the subject and settling the succession of the Crown. Article IX of the Bill of Rights provides as follows: Freedom of Speech-That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament: 293. The above declaration made in Bill of Rights thereafter has been firmly established and till date enjoyed by the House of Commons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and universally acknowledged. By consequence, whatever is done within the walls of either assembly must pass without question in any other place. For speeches made in parliament by a member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete impunity..... 295. Another judgment which needs to be noted is Bradlaugh V. Gossett (1884) 12 Q.B.D. 271. The Plaintiff Bradlaugh was a duly elected burgess to serve in the House of Commons. The House resolved that the Serjeant-at-arms shall exclude Mr. Bradlaugh from the House until he shall engage not further to disturb the proceedings of the House. Lord Coleridge, C.J. stated as follows: ..... What is said or done within the walls of Parliament cannot be inquired into in a court of law. On this point all the judges in the two great cases which exhaust the learning on the subject, -- Burdett v. Abbott 14 East, 1, 148 and Stockdale v. Hansard 9 Ad E 1; -- are agreed, and are emphatic. The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, They would sink into utter c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related to proceeding in Parliament is Church of Scientology of California v. Johnson-Smith (1972) 1 Q.B. 522. Referring earlier judgment in Dingle v. Associated Newspapers, Browne, J. said following: The most recent case to which I was referred was Dingle v. Associated Newspapers Ltd. (1960) 2 Q.B. 405. The Plaintiff's claim in that case was in respect of an Article which had appeared in a newspaper which he said was defamatory of him. It was held in that case that the court could not inquire into the validity of a select committee of the House of Commons on which the Article complained of had apparently been partly based. The invalidity suggested in that case seems to have been a suggestion that there was some sort of procedural defect in the proceedings of the committee, which of course is quite a different set of facts from the present case. But it seems to me that it really involved the same principle as is involved in this case. As I understand it the Plaintiff there was trying to question proceedings in Parliament in order to support in certain respects his case based on a libel published outside Parliament and was held not entitled to do that. By analogy with this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iamentary privilege. The argument of learned Attorney General that the use of parliamentary material by the courts shall amount to questioning of the freedom of speech or debate, was repelled holding that the court would be giving effect to what was said and done there. Considering the aforesaid following was stated by the House of Lords: Article 9 is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech). But, even given a generous approach to this construction, I find it impossible to attach the breadth of meaning to the word 'question; which the Attorney General urges. It must be remembered that art 9 prohibits questioning not only 'in any court' but also in any 'place out of Parliament'. If the Attorney General's submission is correct, any comment in the media or elsewhere on what is said in Parliament would constitute 'questioning' since all members of Parliament must speak and act taking into account what political commentators and others will sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rights (1688). Following was held: ....For the reasons I have given, as a matter of pure law this House should look at Hansard and give effect to the parliamentary intention it discloses in deciding the appeal. The problem is the indication given by the Attorney General that, if this House does so, your Lordships may be infringing the privileges of the House of Commons. For the reasons I have given, in my judgment reference to parliamentary materials for the purpose of construing legislation does not breach Section 1, art 9 of the Bill of Rights.... 304. Again the House of Lords in Prebble v. Television New Zealand Ltd. Privy Council, (1994) 3 All ER 407 observed that there can no longer be any objection to the production of Hansard. Following was held by the Lord Wilkinson: Since there can no longer be any objection to the production of Hansard, the Attorney General accepted (in their Lordships' view rightly) that there could be no objection to the use of Hansard to prove what was done and said in Parliament as a matter of history. Similarly, he accepted that the fact that a statute had been passed is admissible in court proceedings. Thus, in the present action, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt may properly use the ministerial and other statements made in Parliament without in any way questioning what has been said in Parliament. Following was laid down in Para 60: ....What is important is to recognise there are occasions when courts may properly have regard to ministerial and other statements made in Parliament without in any way 'questioning' what has been said in Parliament, without giving rise to difficulties inherent in treating such statements as indicative of the will of Parliament, and without in any other way encroaching upon parliamentary privilege by interfering in matters properly for consideration and Regulation by Parliament alone. The use by courts of ministerial and other promoters' statements as part of the background of legislation, pursuant to Pepper V. Hart case, is one instance. Another instance is the established practice by which courts, when adjudicating upon an application for judicial review of a ministerial decision, may have regard to a ministerial statement made in Parliament. The decision of your Lordships' House in Brind v. Secretary of State for the Home Dept [1991] 1 All ER 720 : [1991] 1 AC 696 is an example of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct occurring outside Parliament, and the policy and motivation leading to it. This is unobjectionable although the aim and effect is to show that such conduct involved the improper exercise of a power for an alien purpose or in a wholly unreasonable manner : Pepper v. Hart, per Lord Browne-Wilkinson at p. 639A. The Joint Committee expressed the view that Parliament should welcome this development, on the basis that Both parliamentary scrutiny and judicial review have important roles, separate and distinct in a modern democratic society (para 50) and on the basis that The contrary view would have bizarre consequences , hampering challenges to the legality of executive decisions.... by ring-fencing what ministers said in Parliament , and making ministerial decisions announced in Parliament less readily open to examination than other ministerial decisions (para 51). The Joint Committee observed, pertinently, that That would be an ironic consequence of Article 9. Intended to protect the integrity of the legislature from the executive and the courts, Article 9 would become a source of protection of the executive from the courts. 309. Office of Government of Commerce v. Inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' reliance in these proceedings on evidence given to Committees of the House and on a report of the Treasury Select Committee. It was submitted on his behalf that their reliance on these matters in these proceedings involved a breach of Article 9 of the Bill of Rights and the wider principle of Parliamentary privilege. 311. The issue as to the admissibility of the Parliamentary material was considered in detail while referring to judgment of House of Lords in Toussaint's (supra). It was held that there is no basis for distinguishing between statement of minister in the House and statement made to a Select Committee. Following was held in Para 117, 124 and 125 of the judgment: 117. In my judgment, the first two of these propositions are too widely stated. I see no basis for distinguishing between what a Minister says in the House of Commons (or the House of Lords), which may be considered by the Court in a case such as Toussaint, and what he or she says to a Select Committee. Whether what is said by an official should be received in evidence must depend on the circumstances: what he says, his authority, and the reason for which it is sought to rely on it. In general, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in the House on a certain date. It would have to consider the statement or statements with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them. This, in my judgment, would be contrary to art 9 of the Bill of Rights. It would be doing what Blackstone said was not to be done, namely to examine, discuss and adjudge on a matter which was being considered in Parliament. Moreover, it would be an invasion by the court of the right of every member of Parliament to fee speech in the House with the possible adverse effects referred to by Browne. 313. It is relevant to note that the above opinion of Dunn LJ was specifically disapproved by House of Lords in Pepper (Inspector of Taxes) v. Hart (supra). House of Lords by referring to above opinion of Dunn LJ had held that the said case was wrongly decided. It is useful to extract following observation of House of Lords: In R v. Secretary of State for Trade, ex p Anderson Strathclyde plc [1982] 2 All ER 233 an applicant for judicial review sought to adduce parliamentary materials to prove a fact. The Crown did not object to the Divisional Court looking at the materials but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittees in cases where no objection was taken to its doing so. In addition, as I said in R (Federation of Tour Operators) v. HM Treasury [2008] STC 547, whether there is any breach of parliamentary privilege in such a reference will depend on the purpose for which the reference is made. For example, it seems to me that there can be no objection to a reference to the conclusions of a report that leads to legislation, since in such a case the purpose of the reference is either historical or made with a view to ascertaining the mischief at which the legislation was aimed; the reference is not made with a view to questioning the views expressed as to the law as at the date of the report. 316. We are of the view that the law as broadly expressed in paragraph 58 of the above case cannot be accepted. All references to Parliamentary proceedings and materials do not amount to breach of privilege to invite contempt of Parliament. When a party relies on any fact stated in the report as the matter of noticing an event or history no exception can be taken on reliance on such report. However, no party can be allowed to 'question' or 'impeach' report of Parliamentary Committee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India, 2017 SCC Online 394 was again a case where report of a Standing Committee of Parliament on Petroleum and Natural Gas has been referred to and relied. Other judgments where Parliamentary Committee Reports have been relied are Kishan Lal Gera v. State of Haryana and Ors., (2011) 10 SCC 529; Modern Dental College and Research Centre v. State of Madhya Pradesh and Ors., (2016) 7 SCC 353; and Lal Babu Priyadarshi v. Amritpal Singh, (2015) 16 SCC 795. 319. Learned Counsel appearing for the Respondents as well as learned Attorney General has submitted that it is true that in the above cases this Court has referred to and relied on Parliamentary Committee Reports but the issue of privilege was neither raised nor considered. 320. We have already noticed that Rules of Parliament, procedure permit the production of Parliamentary materials in a Court of Law as evidence. The Parliamentary materials which are public documents can be submitted before the Court without taking any permission from Parliament. Thus, no exception can be taken in producing Reports of Parliament Committee before a Court of Law. The Indian Evidence Act, 1874 (sic 1872), which regulates the admission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is logically relevant should be admissible. Recently, an eminent Indian jurist has reviewed the legal position and expressed his agreement with Julius Stone and Justice Frankfurter. Of course, nobody suggests that such extrinsic materials should be decisive but they must be admissible. Authorship and interpretation must mutually illumine and interact. There is authority for the proposition that resort may be had to these sources with great caution and only when incongruities and ambiguities are to be resolved? There is a strong case for whittling down the Rule of Exclusion following in the British courts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the words of a statute. 324. Another Constitution Bench in R.S. Nayak v. A.R. Antulay, 1984 (2) SCC 183, considered the objection that debates in Parliament or the reports of Committee cannot be relied as per the 'exclusionary rules'. In paragraph 32 of the judgment, Desai, J. speaking for the Constitution Bench noticed the detailed objections. In paragraph 33 this Court observed that the trend certainly seems to be in the reverse gear that is use of report of Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Eighth report of Criminal Law Revision Committee was admitted as an extrinsic aid to construction. Therefore, it can be confidently said that the exclusionary Rule is flickering in its dying embers in its native land of birth and has been given a decent burial by this Court..... Therefore, departing from the earlier English decisions we are of the opinion that reports of the committee which preceded the enactment of a legislation, reports of Joint Parliamentary Committee, report of a commission set up for collecting. information leading to the enactment are permissible external aids to construction.................... The objection therefore of Mr. Singhvi to our looking into the history of the evolution of the Section with all its clauses, the Reports of Mudiman Committee and K Santhanam Committee and such other external aids to construction must be overruled. 326. Thus, in the above two cases, this Court has accepted that Parliamentary materials can be looked into, that too after considering the exclusionary Rules which prohibited use of Parliamentary materials in courts. As observed above, learned senior counsel, Shri Harish Salve and Shri K.K. Venugopal, learned Attorney ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, should consider the aforementioned two audit reports so as to arrive at a positive finding with regard to the liabilities and assets possessed by them so as to enable to pass appropriate orders. 330. The Special Court was deciding the lis in which party had filed the evidence. Ignoring the same reliance was placed on the report with regard to which observation was made in paragraph 57. The Special Judge ought to have considered the evidence which were produced by the Appellants and only reliance placed on the evidence of Janakiraman Committee Report was rightly disapproved by this Court. The above was a case where sole reliance was placed on the Report which was disapproved. The observation made by the Court that the report should not have been used by the learned Judge as evidence was made in above context which cannot be treated to mean that the report cannot be accepted by a court as evidence. 331. Another judgment which has been relied by the Respondents is State Bank of India v. National Housing Bank and Ors. 2013 (16) SCC 538. In the above case, this Court made following observation in paragraph 50 of the judgment which has been relied: 50. It is well settled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments. The Committee was required to investigate various aspects of the transactions of SBI and other commercial banks as well as financial institutions in this regard. 333. The above judgment cannot be read to mean that Parliamentary Committee reports cannot be adverted to. This Court has referred to Commissions of Inquiry Act, 1952. The observations were made in the light of law as contained in Section 6 of the Commissions of Inquiry Act, 1952. The next case relied on by the Respondents is judgment of this Court in Common Cause: A Registered Society v. Union of India, 2017 (7) SCC 158. 334. In the above judgment, this Court has referred to Parliamentary Standing Committee Report in paragraphs 14 and 16. In paragraph 21 it was held that opinion of the Parliamentary Standing Committee would not be sacrosanct. In paragraph 21 following observation was made: 21....The view of the Parliamentary Standing Committee with regard to the expediency of the Search/Selection Committee taking decisions when vacancy/vacancies exists/exist is merely an opinion which the executive, in the first instance, has to consider and, thereafter, the legislature has to approve. The said opinion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important constituent of a democratic State, must function not in antimony nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilization of the democratic way of life in this country. 338. Learned Attorney General has submitted that relying on the Doctrine of 'Separation of Powers', this Court may desist from taking into consideration the Parliamentary Committee's Report. As observed above, there is no parliamentary privilege that Parliamentary Committee Reports or other parliamentary materials cannot be given in evidence in any court of law. By accepting Parliamentary Report as an evidence, there is no breach of any parliamentary privilege. It is also not out of place to mention that there is a vital difference between parliamentary sovereignt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Constitution laid down the following: Our Legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the Legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our Legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the Legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our Legislatures have pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from public criticism; public criticism is an instrument to keep surveillance and check on all institutions in a democracy. 347. In Wason v. Walter (supra) Cockburn CJ., stated: ....it may be further answered that there is perhaps no subject in which the public have a deeper interest than in all that relates to the conduct of public servants of the State,-no subject of parliamentary discussion which more requires to be made known than an inquiry relating to it.... 348. It was further emphasised that deeper public interest is served in making public, the conduct of a public servant or any inquiry public, Cockburn CJ., further held that there is a full liberty of public writers to comment on the conduct and motives of public men. The recognition of making comment on the conduct was noticed as of recent origin. It was further clearly laid down that comments on Members of both the Houses of the Parliament can also be made by which comments, it is the public which is the gainer. Following weighty observations were made by Cockburn CJ.: ....The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of harmonious construction must be adopted in considering Article 19(1)(a) and Article 194(1) and latter part of Sub-clause (3) of Article 194. The Court further held that the publication of the speech by Search Light in law has to be regarded as unfaithful report, prima facie, constituting a breach of privilege, following observations were made in paragraph 32: 32....The effect in law of the order of the Speaker to expunge a portion of the speech of a member may be as if that portion had not been spoken. A report of the whole speech in such circumstances, though factually correct, may, in law, be regarded as perverted and unfaithful report and the publication of such a perverted and unfaithful report of a speech, i.e., including the expunged portion in derogation to the orders of the Speaker passed in the House may, prima facie, be regarded as constituting a breach of the privilege of the House arising out of the publication of the offending news item and that is precisely the charge that is contemplated by the Committee's resolution and which the Petitioner is by the notice called upon to answer. We prefer to express no opinion as to whether there has, in fact, been any b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances, it can be neither necessary nor desirable in principle that what is said or done in parliament should not be questioned (in the wider sense) in courts or similar tribunals where no legal consequences are to be visited upon such members (or witnesses) by the proceedings in question. 353. The Privilege Committee of the Lok Sabha has also recognised the right of fair comment in following words: Nobody would deny the members or as a matter of fact, any citizen, the right of fair comment. But if the comments contain personal attack on individual members of Parliament on account of their conduct in Parliament, or if the language of the comment is vulgar or abusive, they cannot be deemed to come within the bounds of fair comment or justifiable criticism. (As quoted in Press and Parliament by A.N. Grover in J.C.P.S.VXIII 1984 at p. 141.) 354. Erskine May in 'Parliamentary Practice' (Twenty Fourth Edition) defines contempt in the following words: Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnity and decorum which they observe in their judicial conduct. We venture to think that what is true of the Judicature is equally true of the legislatures. 357. The power to punish for contempt is a privilege available to Parliament which is defined as 'keynote of Parliamentary Privileges'. 358. From what has been stated above, we are of the view that fair comments on report of the Parliamentary Committee are fully protected under the rights guaranteed Under Article 19(1)(a). However, the comments when turns into personal attack on the individual member of Parliament or House or made in vulgar or abusive language tarnishing the image of member or House, the said comments amount to contempt of the House and breach of privilege. 359. In the present case, learned Counsel for the Respondents have contended that in the event, they raise objections regarding Parliamentary Committee Report which has adversely commented on their role they shall be liable to be proceeded for committing contempt of the House, hence, this Court may neither permit the Parliamentary Committee Report to be taken in evidence nor allow the Petitioners to rely on the report. No party is precluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies ago that for preservation of liberty and prevention of tyranny it is absolutely essential to vest separate powers in three different organs. In Federalist 47, 48, and 51, James Madison details how a separation of powers preserves liberty and prevents tyranny. In The Federalist 47, Madison discusses Montesquieu's treatment of the separation of powers in the Spirit of Laws (Book XI, Chapter 6). There Montesquieu writes, When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty.... Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Madison points out that Montesquieu did not feel that different branches could not have overlapping functions, but rather that the power of one department of Government should not be entirely in the hands of another department of Government. 65. Alexander Hamilton in The Federalist 78, remarks on the importance of the independence of the judiciary to preserve the separation of powers and the rights of the people: The complete independence of the courts of justice is peculiarly essential in a limited Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted courts as per Constitutional Scheme, which adjudication has to be made after observing the procedural safeguards which include right to be heard and right to produce evidence. 365. In Dingle v. Associated Newspapers Ltd. and Ors. (supra) in a case of damages for libel where Defendants relied on Parliamentary Committee Report published, Pearson, J., laid down as follows: ...in my view, this Court should make its own findings based on the evidence adduced and on the arguments presented in this Court, and that should be done without regard to any decisions reached or opinions expressed or findings made by a different tribunal having a different function, and, probably, different issues before it, and having received different evidence and a different presentation of the case. 366. The apprehension of the Respondents that their case shall be prejudiced if this Court accepts the Parliamentary Committee Report in evidence, in our opinion is misplaced. By acceptance of a Parliamentary Committee Report in evidence does not mean that facts stated in the Report stand proved. When issues, facts come before a Court of law for adjudication, the Court is to decide the issues on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Lok Sabha for producing such documents as evidence in Court. (v) That mere fact that document is admissible in evidence whether a public or private document does not lead to draw any presumption that the contents of the documents are also true and correct. (vi) When a party relies on any fact stated in the Parliamentary Committee Report as the matter of noticing an event or history no exception can be taken on such reliance of the report. However, no party can be allowed to 'question' or 'impeach' report of Parliamentary Committee. The Parliamentary privilege, that it shall not be impeached or questioned outside the Parliament shall equally apply both to a party who files claim in the court and other who objects to it. Any observation in the report or inference of the Committee cannot be held to be binding between the parties. The parties are at liberty to lead evidence independently to prove their stand in a court of law. (vii) Both the Parties have not disputed that Parliamentary Reports can be used for the purposes of legislative history of a Statute as well as for considering the statement made by a minister. When there is no breach of privilege in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Issue 4, pp. 597-625 3 Woodrow Wilson, Congressional Government , 1885, quoted in the JCOC Final Report, (Baltimore, the Johns Hopkins University Press, 1981) p. 69 4 National Democratic Institute for International Affairs, Parliament's Organization: The Role of Committees and Party Whips - NDI Workshop in Mangochi, Malawi, June 1995 (Washington : National Democratic Institute for International Affairs, 1995) 5 An Introduction to the Procedure of House of Commons 6 Lord Beaconsfield in Hansard, 3rd Series, Vol. 235 (1877) p. 1478 7 Growth of Committee System in the Central Legislature of India 1920-1947 8 See http://www.parliament.uk/business/committees/ 9 Id. 10 See https://www.britannica.com/topic/Congress-of-the-United-States for details. 11 Other types of committees deal with the confirmation or rejection of presidential nominees. Committee hearings that focus on the implementation and investigation of programs are known as oversight hearings, whereas committee investigations examine allegations of wrongdoing. 12 Special committees (sometimes called select committees), e.g., the Special Joint Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Law, 2nd edn (London, Butterworths, 1999) at 304, TRS Allan, Law Liberty and Justice, The Legal Foundations of British Constitutionalism (Oxford, Clarendon Press, 1993) chs 3 and 8, and TRS Allan, Constitutional Justice, A Liberal Theory of the Rule of Law (Oxford, Oxford University Press, 2001) 41 Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS, CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009) 42 R Stevens, 'A Loss of Innocence?: Judicial Independence and the Separation of powers' (1999) 19 OXFORD JOURNAL OF LEGAL STUDIES 365. 43 Allan, Law Liberty and Justice (supra note 36) 44 Gerangelos, at page 277. 45 Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David Dyzenhaus and Malcolm Thorburn (eds.) PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL LAW, (Oxford University Press, 2016) 221 (hereinafter, Philosophical Foundations of Constitutional Law ). 46 See MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford University Press, 1967). 47 Id. 48 Id, at page 13 49 See, MJC Vile, CONSTITUTIONALISM AND THE SEPARATION O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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