Holding

Parliamentary Standing Committee reports can be taken judicial notice of and are admissible in evidence, but they cannot be impeached or challenged in court; they may be used for interpretation of statutes and as historical facts, but contentious facts must be proved independently through evidence.

Summary

The case arose from public interest litigation challenging the clinical trials of the Human Papilloma Virus (HPV) vaccine on adolescent girls in Gujarat and Andhra Pradesh, alleging irregularities and health risks. The petitioners relied on reports of the Parliamentary Standing Committee on Health and Family Welfare (72nd and 81st Reports) to support their claims. The respondents, including the Union of India and pharmaceutical companies, objected, arguing that reliance on such reports would breach parliamentary privilege and disturb the constitutional balance between institutions. The two-judge Bench referred the matter to a Constitution Bench, framing questions on whether the Court can refer to and rely on Parliamentary Standing Committee reports in proceedings under Articles 32 or 136, and whether such reports can be looked at for reference subject to parliamentary privilege. The Constitution Bench, in a unanimous decision, held that judicial notice can be taken of Parliamentary Standing Committee reports under Section 57(4) of the Evidence Act, and they are admissible as public documents under Section 74. However, the reports cannot be impeached or challenged in court; they can be used for interpreting statutes, understanding historical facts, and as a basis for fair comment. When facts are contentious, the Court must independently adjudicate based on evidence adduced. The reference was answered accordingly, and the writ petitions were directed to be listed before the appropriate Bench for hearing.

Issues considered

Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee?
Whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?

Legislation cited

Constitution of Indias. 105, s. 121, s. 122, s. 136, s. 194, s. 212, s. 32, s. 361A
Indian Evidence Act, 1872s. 57(4), s. 74
Parliamentary Proceedings (Protection of Publication) Act, 1977s. 3

Subjects

Parliamentary privilegeJudicial reviewParliamentary Standing CommitteeEvidence ActSeparation of powersConstitutional interpretationPublic Interest LitigationHPV vaccine clinical trials

Judgment

[2018] 4 S.C.R. 1 1

KALPANA MEHTA AND OTHERS A
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No. 558 of 2012)
MAY 09, 2018 B
[DIPAK MISRA, CJI, A. M. KHANWILKAR, A. K. SIKRI,
DR. D. Y. CHANDRACHUD AND ASHOK BHUSHAN, JJ.]
Public Interest Litigation:
Constitution of India – Arts. 32 and 136 – Report of C
Parliamentary Standing Committee – Reliance upon – Parliamentary
proceeding and its privilege – Scope of judicial review –
Irregularities in the clinical trials for Human Papilloma Virus (HPV)
vaccine – Justifiability of action taken by Drugs Controller General
of India and Indian Council of Medical Research pertaining to
D
approval of vaccine – On facts, HPV vaccine manufactured by
pharmaceutical company, for preventing cervical cancer in women
– Experimentation of the vaccine as an immunisation by the
Government of Gujarat and Andhra Pradesh on young adolescent
girls – Untimely death of the girls – Irregularities and health risk of
HPV vaccine pointed out by health activist – Appointment of E
Parliamentary Standing Committee to enquire into the alleged
irregularities – 72nd and 81st Standing Committee Report indicating
various shortcomings and lapses of the Government Departments,
ICMR, NGO and Pharmaceutical Companies – Thereafter filing of
writ petition by activist challenging irregularities in the clinical trials
F
– Reliance placed on the report of the Parliamentary Standing
Committee by petitioners – Case of Union of India that the Reports
could neither be looked into nor relied by this Court – Questions
framed by two-Judge Bench for reference to Constitution Bench-
whether in a litigation filed before this Court either u/Arts. 32 or
136, the Court can refer to and place reliance upon the report of G
the Parliamentary Standing Committee; and whether such a Report
can be looked at for the purpose of reference – Held: Per curiam:
In a litigation filed either u/Arts. 32 or 136, judicial notice can be
taken of the Parliamentary Standing Committee report, however,
the report cannot be impinged or challenged in a court of law.
H
1
2 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Arts. 32, 136 and 105 – Report of Parliamentary Standing
Committee indicating irregularities in the clinical trials for Human
Papilloma Virus (HPV) vaccine – Reference to and reliance upon
by this Court – Held: Per Dipak Misra, CJI:(For himself and
Khanwilkar, J.): Parliamentary Standing Committee report can be
taken aid of for the interpretation of a statutory provision – Judicial
B
notice can be taken of the Parliamentary Standing Committee report
u/s. 57(4) of the Evidence Act and it is admissible u/s 74 of the Act
– In a litigation u/Art. 32 or Art. 136, this Court can take on record
the report of the Parliamentary Standing Committee, however, it
cannot be impinged or challenged in a court of law – Where the
C fact is contentious, the petitioner can always collect the facts from
many a source and produce such facts by way of affidavits, and the
Court can render its verdict by way of independent adjudication –
Report being in the public domain can invite fair comments and
criticism from the citizens – Per Chandrachud, J. (for himself and
Sikri, J.): Reliance upon the report of Parliamentary Standing
D
Committee can be placed in proceedings u/Art. 32 or Art. 136 – On
publication of the report, its reference in the course of judicial
proceedings would not constitute a breach of parliamentary privilege
– Validity of the report cannot be called into question in the court –
No Member of Parliament or person can be made liable for what is
E stated in the course of the proceedings before a Parliamentary
Committee – When 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 – (Per Ashok Bhushan,
J): Reports submitted by Members of Parliament fully covered by
protection extended u/Art. 105 and they cannot be held liable for
F
anything said by them in Parliament or in any committee – Publication
of the reports not being only permitted, but also are being
encouraged by the Parliament and on publication it can be used by
the public in general – Judicial notice can be taken of the course
of proceedings of Parliament and the Legislature u/s. 57(4) –
G Parliamentary Committee Reports can be relied on for noticing an
event or history however, no party can be allowed to ‘question’ or
‘impeach’ report of Parliamentary Committee – 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 the Court for adjudication, the Court is to decide the issues
H on the basis of evidence and materials brought before it.
KALPANA MEHTA v. UNION OF INDIA 3

Arts. 105, 118, 194, 121, 122 and 212 – Parliamentary A
privileges – Powers, privileges, etc of the Houses of Parliament
and of the members and Committees thereof – Publication of the
parliamentary proceedings – Explained.
Parliamentary proceeding and parliamentary privilege –
Scope of judicial review – Explained. B
Parliamentary Standing Committees – Role, Relevance and
significance – Explained.
Parliamentary Standing Committees – Parliamentary
Committees in England, United States of America, Canada, Australia
– Role and responsibility – Stated. C

Foundational fundamentals – Supremacy of the Constitution,
Constitutional limitations, doctrine of separation of powers, power
of judicial review, interpretation of Constitution, interpretation of
fundamental rights and interpretation of other constitutional
provisions – Analysis of. D
Evidence Act, 1872 – s. 57(4) – Parliamentary proceedings –
Applicability of the Act – Facts of which Court must take judicial
notice – Held: Under s. 57(4), 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 – Parliamentary standing E
committee report can be judicially taken note of as such report comes
within the ambit of s. 57(7) – Parliamentary standing committee
report being in the public domain is a public document, thus, it is
admissible u/s. 74 of the Act.
Answering the Reference, the Court F
HELD: Per Dipak Misra, CJI:(For himself and Khanwilkar, J.)
1. Parliamentary Standing Committee report can be taken
aid of for the purpose of interpretation of a statutory provision
wherever it is so necessary and also it can be taken note of as
existence of a historical fact. Judicial notice can be taken of the G
Parliamentary Standing Committee report under Section 57(4) of
the Evidence Act and it is admissible under Section 74 of the
said Act. In a litigation filed either under Article 32 or Article
136 of the Constitution, this Court can take on record the report
of the Parliamentary Standing Committee. However, the report H
4 SUPREME COURT REPORTS [2018] 4 S.C.R.

A cannot be impinged or challenged in a court of law. Where the
fact is contentious, the petitioner can always collect the facts from
many a source and produce such facts by way of affidavits, and
the Court can render its verdict by way of independent
adjudication. The Parliamentary Standing Committee report being
in the public domain can invite fair comments and criticism from
B
the citizens as in such a situation, the citizens do not really
comment upon any member of the Parliament to invite the hazard
of violation of parliamentary privilege. [Para 138][121-C-G]
Supremacy of the Constitution
C 2. The Constitution of India is the supreme fundamental
law and all laws have to be in consonance or in accord with the
Constitution. The constitutional provisions postulate the
conditions for the functioning of the legislature and the executive
and prescribe that the Supreme Court is the final interpreter of
the Constitution. All statutory laws are required to conform to
D the fundamental law, that is, the Constitution. The functionaries
of the three wings, namely, the legislature, the executive and the
judiciary derive their authority and jurisdiction form the
Constitution. It is in the exercise of law-making power by the
Constituent Assembly that Constitution has been controlled.
E Articles 14, 19 and 21 represent the foundational values which
form the bedrock of the rule of law. These are the principles of
constitutionality which form the basis of judicial review apart from
the rule of law and separation of powers. Thus, the three wings of
the State are bound by the doctrine of constitutional sovereignty
and all are governed by the framework of the Constitution. The
F Constitution does not accept transgression of constitutional
supremacy and that is how the boundary is set. [Paras 13, 15,
16][63-B-C; 64-D-E]
Kalpana Mehta and others v. Union of India and others
(2017) 7 SCC 307; Kesavananda Bharati v State of
G Kerala [1973] Suppl. SCR 1 : (1973) 4 SCC 225; State
of Rajasthan and others v. Union of India and others
[1978] 1 SCR 1 : (1977) 3 SCC 592; I R Coelho v.
State of Tamil Nadu [2007] 1 SCR 706 : (2007) 2 SCC 1
– referred to.
H
KALPANA MEHTA v. UNION OF INDIA 5

Constitutional limitations upon the legislature A
3. The law making power of the Parliament or State
legislature is bound by the concept of constitutional limitation. It
is necessary to appreciate what precisely is meant by
constitutional limitation. Under the Constitution, the Parliament
and the State legislatures have been entrusted with the power of B
law making. Needless to say, if there is a transgression of the
constitutional limitation, the law made by the legislature has to
be declared ultra vires by the Constitutional Courts. That power
has been conferred on the Courts under the Constitution and
that is why, the terminology-constitutional sovereignty is used.
It is an accepted principle that the rule of law constitutes the C
core of our Constitution and it is the essence of the rule of law
that the exercise of the power by the State, whether it be the
legislature or the executive or any other authority, should be
within the constitutional limitations. [Paras 17, 20][64-F; 66-E-
F] D
State of West Bengal v. Anwar Ali Sarkar [1952] SCR
284 : AIR 1952 SC 75; K.C. Gajapati Narayan Deo v.
State of Orissa [1954] SCR 1 : AIR 1953 SC 375; Deep
Chand v. State of Uttar Pradesh and others [1959] Supp.
2 SCR 8 : AIR 1959 SC 648; Binoy Viswam v. Union of E
India and others (2017) 7 SCC 59 – referred to.
Queen v. Burah (1878) LR 5 I.A. 178; Attorney-General
for Ontario v. Attorney-General for Canada (1912) AC
571 – referred to.
“Constitutional Limitation” by Cooley (Eighth Edn. F
Volume I) – referred to.
Doctrine of separation of powers
4. The concept of constitutional limitation is a facet of the
doctrine of separation of powers. There can really be no strait-
G
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 social interest, etc. and empowering
the populace with the right to information or right to know in
matters relating to candidates contesting election. There can be H
6 SUPREME COURT REPORTS [2018] 4 S.C.R.

A many an example where this Court has issued directions to the
executive and also formulated guidelines for facilitation and in
furtherance of fundamental rights and sometimes for the
actualization and fructification of statutory rights. [Para 27][70-
B-D]
B Smt. Indira Nehru Gandhi v. Shri Raj Narain and
another (1975) Supp. SCC 1 : [1976] SCR 347;
Kesavananda Bharati v. State of Kerala [1973] Suppl.
SCR 1 : (1973) 4 SCC 225; State of Himachal Pradesh
v. A Parent of a Student of Medical College, Simla and
others [1985] 3 SCR 676 : (1985) 3 SCC 169; State of
C Tamil Nadu v. State of Kerala and another [2014]
12 SCR 875 : (2014) 12 SCC 696; Bhim Singh v. Union
of India and others [2010] 6 SCR 218 : (2010) 5
SCC 538; Mansukhlal Vithaldas Chauhan v. State of
Gujarat [1997] 3 Suppl. SCR 705 : (1997) 7 SCC 622;
D Federation of Railway Officers Association and others
v. Union of India 2003 AIR 1344 : (2003) 4 SCC 289
: [2003] 2 SCR 1085; State of Maharashtra and others
v. Raghunath Gajanan Waingankar 2004 AIR 4264 :
[2004] 3 Suppl. SCR 365; Divisional Manager, Aravali
Golf Club and another v. Chander Hass and
E another [2007] 12 SCR 1084 : (2008) 1 SCC 683; Asif
Hameed and others v. State of Jammu and Kashmir and
others [1989] 3 SCR 19 : (1989) 2 Suppl. SCC 364; I
R Coelho v. State of Tamil Nadu [2007] 1 SCR 706 :
(2007) 2 SCC 1 – referred to.
F Power of judicial review
5.1 Immense responsibility is laid on the Court pertaining
to the exercise of the power keeping in view the accepted values
of the present. An organic instrument requires the Court to draw
strength from the spirit of the Constitution. The propelling
G element of the Constitution commands the realization of the
values. The aspiring dynamism of the interpretative process also
expects the same. 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
H review has a great sanctity as the Constitutional Court has the
KALPANA MEHTA v. UNION OF INDIA 7

power to declare any law as unconstitutional if there is lack of A
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.
[Paras 28-29][71-C-E]
B
5.2 When judicial review is discussed, 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 C
power. Judges are expected to interpret any law or any provision
of the Constitution as per the limits laid down by the Constitution.
[Para 30][71-F-G]
Union of India and another v. Raghubir Singh (Dead)
by LRs. Etc. [1989] 3 SCR 316 : (1989) 2 SCC 754; D
S.C. Chandra and others v. State of Jharkhand and
others [2007] 9 SCR 130 : (2007) 8 SCC 279; Suresh
Seth v. Commr., Indore Municipal Corpn. and others
(2005) 13 SCC 287; Supreme Court Employees’ Welfare
Association v. Union of India and another [1989] E
3 SCR 488 : (1989) 4 SCC 187; Census Commissioner
and others v. R. Krishnamurthy [2014] 11 SCR 463
: (2015) 2 SCC 796; Premium Granites and another v.
State of T.N. and others [1994] 1 SCR 579 : (1994) 2
SCC 691; M.P. Oil Extraction and another v. State of
M.P. and others [1997] 1 Suppl. SCR 671 : (1997) 7 F
SCC 592; State of Madhya Pradesh v. Narmada Bachao
Andolan and another [2011] 6 SCR 443 : (2011) 7
SCC 639; State of Punjab and others v. Ram Lubhaya
Bagga and others [1998] 1 SCR 1120 : (1998) 4 SCC
117 – referred to. G
5.3 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. H
8 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Constitutional Courts cannot sit in oblivion when fundamental
rights of individuals are at stake. The 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
B
iota of hesitation or apprehension, when the fundamental rights
of individuals are in jeopardy. [Para 33][73-B-D]
Virendra Singh and others v. The State of Uttar
Pradesh 1954 AIR 447 : [1955] SCR 415 – referred
to.
C
5.4 While interpreting fundamental rights, the
Constitutional Courts should remember that whenever an
occasion arises, the Courts have to adopt a liberal approach with
the object to infuse lively spirit and vigour so that the fundamental
rights do not suffer. When it is said so, it may not be understood
D that while interpreting fundamental rights, the Constitutional
Courts should altogether depart from the doctrine of precedents
but it is the obligation of the Constitutional Courts to act as sentinel
on the qui vive to ardently guard the fundamental rights of
individuals bestowed upon by the Constitution. Such an approach
E applies with more zeal in case of Article 32 of the Constitution
which has been described as “the very soul of the Constitution -
the very heart of it.” Article 32 enjoys special status and, therefore,
it is incumbent upon this Court, in matters under Article 32, to
adopt a progressive attitude. This would be in consonance with
the duty of this Court under the Constitution, that is, to secure
F the inalienable fundamental rights of individuals. [Paras 34-35][73-
F; 74-A-B]
K.S. Srinivasan v. Union of India 1958 AIR 419 : [1958]
SCR 1295 – referred to.

G Interpretation of the Constitution – The nature of duty cast
upon this Court
6. The Constitution being an organic document, its ongoing
interpretation is permissible. The supremacy of the Constitution
is essential to bring social changes in the national polity evolved
with the passage of time. The interpretation of the Constitution
H
KALPANA MEHTA v. UNION OF INDIA 9

is a difficult task. While doing so, the Constitutional Courts are A
not only required to take into consideration their own experience
over time, the international treaties and covenants but also keep
the doctrine of flexibility in mind. 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
B
constitutional supremacy to meet the legitimate expectations of
the citizens. The words of the Constitution have been injected
life to express connotative meaning. The process of interpretation
ought to meet the values and aspirations of the present generation
and it has two facets, namely, process of creation and discovery.
While interpreting a constitutional provision, one has to be guided C
by the letter, spirit and purpose of the language employed therein
and also the constitutional silences or abeyances that are
discoverable. The scope and discovery has a connection with the
theory of constitutional implication. Additionally, the
interpretative process of a provision of a Constitution is also
D
required to accentuate the purpose and convey the message of
the Constitution which is intrinsic to the Constitution. [Paras 38-
40][75-F-G; 76-B, G; 77-A]
S.R. Bommai and others v. Union of India and others
[1994] 2 SCR 644 : (1994) 3 SCC 1; GVK Industries
Limited and another v. Income Tax Officer and another E
[2011] 3 SCR 366 : (2011) 4 SCC 36; Union of India
v. Naveen Jindal and another [2004] 1 SCR 1038 :
(2004) 2 SCC 510; K.S. Puttaswamy and another v.
Union of India and others (2017) 10 SCC 1; Supreme
Court Advocates-on-Record Association and others v. F
Union of India [1993] 2 Suppl. SCR 659 : (1993) 4
SCC 441 – referred to.
Interpretation of fundamental rights:
7. In the initial years, after the Constitution came into force,
the Court viewed each fundamental right as separate and distinct. G
That apart, the rule of restrictive interpretation was applied. The
contours were narrow and limited. The perception changed when
the Court focussed on the actual impairment caused by the law
rather than the literal validity of the law. Constitution and, in
particular, which protects and which entrenches fundamental H
10 SUPREME COURT REPORTS [2018] 4 S.C.R.

A rights and freedoms to which all persons in the State are to be
entitled is to be given a generous and purposive construction.
The Court must interpret the Constitution in a manner which
would enable the citizens to enjoy the rights guaranteed by it in
fullest measure. [Para 41][77-B-C; 78-C-D]
B A.K. Gopalan v. State of Madras AIR 1950 SC 27 :
[1950] SCR 88; I R Coelho v State of Tamil Nadu [2007]
1 SCR 706 : (2007) 2 SCC 1; Rustom Cavasjee Cooper
v. Union of India (1970) 1 SCC 248; Sakal Papers (P)
Ltd. v. Union of India [1962] 3 SCR 842 : AIR 1962
SC 305; Sambhu Nath Sarkar v. State of West Bengal
C and others [1974] 1 SCR 1 : (1973) 1 SCC 856;
Haradhan Saha v. The State of West Bengal and others
[1975] 3 SCC 198 : [1975] 1 SCR 778; Khudiram Das
v. State of West Bengal and others [1975] 2 SCR 832 :
(1975) 2 SCC 81; Maneka Gandhi v. Union of India
D and another [1978] 1 SCC 248; M. Nagaraj and others
v. Union of India and others [2006] 7 Suppl. SCR 336
: (2006) 8 SCC 212 – referred to.
Interpretation of other constitutional provisions
8. There has been deliberation upon the interpretation of
E other constitutional provisions that really do not touch the area
of fundamental rights but are fundamental for constitutional
governance and the duty of the Court is not to transgress the
constitutional boundaries. The concern is not with the
interpretation of such constitutional provisions which have impact
F on the fundamental rights of the citizens. The concern is with the
interpretation of certain provisions that relate to parliamentary
privilege and what is protected by the Constitution in certain
articles. This situation has emerged in the context of the Court’s
role to rely upon the reports of Parliamentary Standing
Committees in the context of the constitutional provisions
G contained in Arts 105 and 122. [Para 50][81-C-D]
B.R. Kapur v. State of T.N. and another [2001] 3 Suppl.
SCR 191 : (2001) 7 SCC 231; Kesavananda Bharati v.
State of Kerala [1973] Suppl. SCR 1 : (1973) 4 SCC
225; Minerva Mills Ltd. and others v. Union of India
H and others [1981] 1 SCR 206 : (1980) 3 SCC 625;
KALPANA MEHTA v. UNION OF INDIA 11

Manoj Narula v. Union of India [2014] 9 SCR 965 A
: (2014) 9 SCC 1; Kuldip Nayar and others v. Union
of India and others [2006] 5 Suppl. SCR 1 : (2006) 7
SCC 1; G. Narayanaswami v. G. Pannerselvam and
others [1973] 1 SCR 172 : (1972) 3 SCC 717; Union
of India v. Sankalchand Himatlal Sheth and another
B
[1978] 1 SCR 423 : (1977) 4 SCC 193 – referred to.
Melbourne Corporation v. Commonwealth [1947] 74
CLR 31 (Aust); Australian Capital Television Pty.
Limited and others and the State of New South Wales v.
The Commonwealth of Australia and another [Political
Advertising case] [1992] 177 CLR 106 (Aust); C
Massachusetts Bonding & Insurance Co. v. United States
352 U.S. 128 (1956); R.E. Megarry, ‘A Second
Miscellany-at-Law’ (Stevens, London, 1973), p 152 –
referred to.
A perspective on the role of Parliamentary Committees D

9. The parliamentary committee systems have emerged as
a creative way of parliaments to perform their basic functions.
They serve as the focal point for legislation and oversight. In a
number of parliaments, bills, resolutions and matters on specific
issues are referred to specific committees for debate and E
recommendations are made to the House for further debate.
Parliamentary committees have emerged as vibrant and central
institutions of democratic parliaments of today’s world.
Parliaments across the globe set up their own rules on how
committees are established, the composition, the mandate and F
how chairpersons are to be selected but they do have certain
characteristics in common. They are usually a small group of MPs
brought together to critically review issues related to a particular
subject matter or to review a specific bill. They are often expected
to present their observations and recommendations to the
Chamber for final debate. Often committees have a multi-party G
composition. They examine specific matters of policy or
government administration or performance. Effective committees
have developed a degree of expertise in a given policy area, often
through continuing involvement and stable memberships. [Paras
58-59][84-E-H] H
12 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Entering the Committee System: State Committee
Assignments, Ronald D. Hedlund, Political; Research
Quarterly, Vol. 42, Issue 4, pp.597-625; Woodrow
Wilson, “Congressional Government”, 1885, quoted in
the JCOC Final Report, (Baltimore, the Johns Hopkins
University Press, 1981) p.69; National Democratic
B
Institute for International Affairs, Parliament’s
Orgainzation: The Role of Committees and Party Whips
– NDI Workshop in Mangochi, Malawi, June 1995
(Washington : National Democratic Institute for
International Affairs, 1995); “An Introduction to the
C Procedure of House of Commons”; Hansard, 3rd Series,
Vol.235 (1877) p. 1478;”Growth of Committee System
in the Central Legislature of India 1920-1947" –
referred to.
Parliamentary Committees in India
D 10. The founding fathers of the Constitution perceived
that a parliamentary system would respond effectively to the
problems arising from our diversity as also to the myriad socio-
economic factors that the nation was faced with. With that
obj ect ive, in the political system that is es tabl ished,
E prominence was given to the Parliament, the organ that directly
represents the people and as such accountable to them. 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 disposal is limited. It cannot, therefore, give close
consideration to all the legislative and other matters that come
F up before it. A good deal of its business is, therefore, transacted
in the Committees of the House known as Parliamentary
Committees. 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
G its report to the House or to the Speaker. Founded on English
traditions, the Indian Parliament’s committee system has a vital
role in the parliamentary democracy. [Paras 70, 73-74][89-B-
C; 90-F-H]

H
KALPANA MEHTA v. UNION OF INDIA 13

Rules of Procedure and Conduct of Business in Lok A
Sabha
11. A close look at the functioning of these committees
discloses the fact that the committee system is designed to
enlighten Members of Parliament (MPs) on the whole range of
governmental action including defence, external affairs, industry
B
and commerce, agriculture, health and finance. They offer
opportunities to the members of the Parliament to realize and
comprehend the dynamics of democracy. The members of
Parliament receive information about parliamentary workings as
well as perspective on India’s strengths and weaknesses through
the detailed studies undertaken by standing committees. Indian C
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
D
Members of Parliament to shoulder greater responsibilities and
broaden their horizons. [Para 76]
Parliamentary privilege under the Indian Constitution
12.1 Article 105 of the Constitution is relevant to
understand the status of parliamentary Committee and the
privileges it enjoys in the Indian content. Sub-article (2) of the E
Article 105 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
F
Article 19(1)(a) of the Constitution. Members of the Parliament
enjoy full freedom in respect of what they speak inside the House.
Article 105(4) categorically stipulates that 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 the G
Parliament or any committee thereof as they apply in relation to
the members of the Parliament. Thus, there is complete
constitutional protection. Article 118 provides that each House
of the Parliament may make rules for regulating, subject to the
provisions of this Constitution, its procedure and the conduct of
H
14 SUPREME COURT REPORTS [2018] 4 S.C.R.

A its business. The Parliament has been enabled by the Constitution
to regulate its procedure apart from what has been stated directly
in the Constitution. [Paras 86-87][96-G; 97-A, F-H; 98-A-B]
12.2 Article 105 of the Constitution is read mutatis mutandis
with Article 194 of the Constitution as the language in both the
B Articles is identical, except that Article 105 employs the word
“Parliament” whereas Article 194 uses the words “Legislature
of a State”. Therefore, the interpretation of one of these articles
would invariably apply to the other and vice versa.[Para 88][98-
C]
U.P. Assembly case [Special Reference No. 1 of 1964]
C 1965 AIR 745 : [1965] SCR 413; Raja Ram Pal v.
Hon’ble Speaker, Lok Sabha and others [2007] 1
SCR 317 : (2007) 3 SCC 184 – referred to.
Black’s Law Dictionary, 6th Ed., 1990, 9.1197; Erskine
May’s Treatise on The Law, Privileges, Proceedings and
D Usage of Parliament, (Lexis Nexis, 24thedn., 209;”–
referred to.
Judicial review of parliamentary proceedings and its
privilege
13. Articles 121 and 122 of the Constitution are extremely
E significant as they are really meant to state the restrictions
imposed by the Constitution on both the institutions. 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
F
105(3); 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
G 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. [Paras 101, 102, 105][104-G; 108-D-F]
Hamilton v. Al Fayed [2001] 1 AC 395; Wellesley v.
H Duke of Beaufort [1831] Eng R 809 : (1831) 2 Russ
KALPANA MEHTA v. UNION OF INDIA 15

& My 639: (1831) 39 ER 538; New Brunswick A
Broadcasting Co. v. Nova Scotia (Speaker of the House
of Assembly) [1993] 1 SCR 319; Harvey v. New
Brunswick (Attorney General) [1996] 2 SCR 876;
Bradlaugh v. Gossett (1884) 12 QBD 271 (D) – referred
to.
B
A History of English Law” by Sir William Holdsworth
– referred to.
Reliance on parliamentary proceedings as external aids
14.1 The reports or speeches have been referred to or not
referred to for the purposes indicated therein and when the C
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. [Para
112][111-F-G] D
14.2 The Court can take aid of the report of the
parliamentary committee for the purpose of appreciating the
historical background of the statutory provisions and it can also
refer to committee report or the speech of the Minister on the
floor of the House of the Parliament if there is any kind of E
ambiguity or incongruity in a provision of an enactment. Further,
it is quite vivid on what occasions and situations the Parliamentary
Standing Committee Reports or the reports of other Parliamentary
Committees can be taken note of by the Court and for what
purpose. Relying on the same for the purpose of interpreting the
meaning of the statutory provision where it is ambiguous and F
unclear or, for that matter, to appreciate the background of the
enacted law is quite different from referring to it for the purpose
of arriving at a factual finding. That may invite a contest, a
challenge, a dispute and, if a contest arises, the Court, in such
circumstances, will be called upon to rule on the same. [Para G
117][113-E-G]
R.S. Nayak v. A.R. Antulay[1984] 2 SCR 495 : (1984)
2 SCC 183; State of West Bengal v. Union of India
1963 AIR 1241 : [1964] SCR 371; K.P. Varghese v.
Income Tax Officer, Ernakulam and another [1982]
H
16 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 1 SCR 629 : (1981) 4 SCC 173; Dr. Ramesh Yeshwant
Prabhoo v. Prabhakar Kashinath Kunte and others
[1995] 6 Suppl. SCR 371 : (1996) 1 SCC 130; Novartis
AG v. Union of India and others [2013] 13 SCR 148 :
(2013) 6 SCC 1; State of Madhya Pradesh and another
v. Dadabhoy’s New Chirimiri Ponri Hill Colliery Co.
B
Pvt. Ltd. [1972] 2 SCR 609 : (1972) 1 SCC 298; Union
of India v. Steel Stock Holders Syndicate, Poona [1976]
3 SCR 504 : (1976) 3 SCC 108; Surana Steels Pvt.
Ltd. v. Dy. Commissioner of Income Tax and others
[1999] 2 SCR 589 : (1999) 4 SCC 306; Ashoka Kumar
C Thakur v. Union of India and others [2008] 4 SCR 1 :
(2008) 6 SCC 1; Additional Commissioner of Income
Tax, Gujarat v. Surat Art Silk Cloth Manufacturers’
Association, Surat [1980] 2 SCR 77 : (1980) 2 SCC
31; Dharam Dutt and others v. Union of India and
others [2003] 6 Suppl. SCR 151 : (2004) 1 SCC 712;
D
Kuldip Nayar and others v. Union of India and others
[2006] 5 Suppl. SCR 1 : (2006) 7 SCC 1 – referred
to.
Pepper v. Hart [1992] UKHL 3 : [1993] AC 593 :
[1992] 3 WLR 1032; R. v. Vasil [1981] 1 SCR 469,
E 121 D.L.R. (3d) 41; Re Anti-Inflation Act (Canada)
[1976] 2 SCR 373, 68 D.L.R. (3d) 452 – referred to.
Section 57(4) of the Evidence Act
15.1 Section 57 of the Evidence Act by employing the words
“shall”, casts an obligation upon the Courts to take judicial notice
F
of the said facts. Section 57, sub-section (4) casts an obligation
on the Courts to take judicial notice of the course of proceedings
of Parliament. Parliamentary standing committee report being in
the public domain is a public document. Therefore, it is admissible
under Section 74 of the Act and judicial notice can be taken of
G such a document as envisaged under Section 57(4) of the Act.
The said document can be taken on record. It can be taken aid of
to understand and appreciate a statutory provision if it is unclear,
ambiguous or incongruous. It can also be taken aid of to
appreciate what mischief the legislative enactment intended to
avoid. Additionally, it can be stated with certitude that there can
H
KALPANA MEHTA v. UNION OF INDIA 17

be a fair comment on the report and a citizen in his own manner A
can advance a criticism in respect of what the report has stated.
The right to fair comment is guaranteed to the citizens. It is
because freedom of speech, as permissible within constitutional
parameters, is essential for all democratic institutions. Fair
comments show public concern and, therefore, such comments
B
cannot be taken exception to. That is left to public opinion and
perception on which the grand pillar of democracy is further
strengthened. And, in all such circumstances, the question of
parliamentary privilege would not arise. [Paras 121, 123][115-B-
F]
Sole Trustee Lok Shikshana Trust v. Commissioner of C
Income Tax, Mysore [1976] 1 SCR 461 : (1976) 1 SCC
254 – referred to.
15.2 In the instant case at hand, the petitioners intend to
rely on the contents of the report and invite a contest. In such a
situation, the Court would be duty bound to afford the respondents D
an opportunity of 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 accept, without contest, the opinion expressed
in the parliamentary standing committee report and the facts
stated therein; or contest the correctness of the opinion of the E
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, F
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. [Para
124][115-A-C; 116-A-C]
15.3 There is an intrinsic difference between parliamentary G
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 enactment or, for that matter, a parliamentary
committee report that had come into existence prior to the
enactment of a law and a contestable/conflicting matter of “fact” H
18 SUPREME COURT REPORTS [2018] 4 S.C.R.

A stated in the parliamentary committee report. It is the
parliamentary proceedings falling within the former category of
which Courts are enjoined under Section 57, sub-section (4) to
take judicial notice of, whereas, for the latter category of
parliamentary proceedings, the truthfulness of the contestable
matter of fact stated during such proceedings has to be proved in
B
the manner known to law. [Para 125][116-D-E]
15.4 Taking judicial notice of the Parliamentary Standing
Committee report can only be to the extent that such a report
exists. The said report can be taken aid of for understanding the
statutory provision wherever it is felt so necessary or to take
C cognizance of a historical fact that is different from a contest. The
word “contest”, means to make defence to an adverse claim in a
Court of law; to oppose, resist or dispute; to strive to win or
hold; to controvert, litigate, call in question, challenge to defend.
This being the meaning of the word “contest”, the submission to
D adjudge the lis on the factual score of the report is to be negatived.
[Para 127][116-G-H; 117-A]
Black’s Law Dictionary – referred to.
Reference to Parliamentary Standing Committee report
16.1 A party can always establish his case on the materials
E
on record and the Court can independently adjudicate the
controversy without allowing a challenge to Parliamentary
Committee report. It is so thought 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
F involve a fundamental right that is affected by parliamentary
action. In such a situation, the concept of jurisprudential
foundational principle is dealt with 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
G
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 of judicial restraint does not take
H the colour of judicial abdication or judicial passivism. Judicial
KALPANA MEHTA v. UNION OF INDIA 19

engagement requires that the Courts maintain their constitutional A
obligation to remain the sentinel on qui vive. It requires a vigilant
progressive judiciary for the rights and liberties of the citizens to
be sustained. Thus, as long as decision of Court is progressive
being in accord with the theory of judicial engagement, the
approach would be to ensure the proper discharge of duty by the
B
Constitutional Courts so as to secure the inalienable rights of
the citizens recognized by the Constitution. The Court cannot
abdicate its duty to allow injustice to get any space or not allow
real space to a principle that has certain range of acceptability.
[Para 135][119-B-E]
16.2 The Supreme Court ought not to shy away from its C
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 D
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. Thus, the Constitutional Courts
should always adopt a progressive approach and display a dynamic
and spirited discharge of duties regard being had to the concepts
of judicial statesmanship and judicial engagement, for they E
subserve the larger public interest. In the instant case, the
constitutional obligation persuades to take the view that the
Parliamentary Standing Committee Report or Parliamentary
Committee Report can be taken judicial notice of and regarded
as admissible in evidence, but it can neither be impinged nor F
challenged nor its validity can be called in question. [Para
137][120-F-G; 121-A-B]
Catering Cleaners of Southern Railway v. Union of
India and another [1987] 2 SCR 164 : (1987) 1 SCC
700; State of Maharashtra v. Milind and others [2000] G
5 Suppl. SCR 65 : (2001) 1 SCC 4; Federation of
Railway Officers Association and others v. Union of
India 2003 AIR 1344 : (2003) 4 SCC 289; Ms. Aruna
Roy and Others v. Union of India and others [2002]
2 Suppl. SCR 266 : (2002) 7 SCC 368; M.C. Mehta v.
H
20 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Union of India and others (2017) 7 SCC 243; Lal Babu
Priyadarshi v. Amritpal Singh [2015] SCR 1009 : (2015)
16 SCC 795; Gujarat Electricity Board v. Hind Mazdoor
Sabha and others [1995] 1 Suppl. SCR 173 : (1995)
5 SCC 27; Modern Dental College and Research Centre
and others v. State of Madhya Pradesh and others
B
(2016) 7 SCC 353; Krishan Lal Gera v. State of
Haryana and others [2011] 7 SCR 722 : (2011) 10
SCC 529 – distinguished.
Lakshmi Kant Pandey v. Union of India [1984] 2 SCR
795 : (1984) 2 SCC 244; Vishaka and others v. State of
C Rajasthan and others [1997] 3 Suppl. SCR 404 : (1997)
6 SCC 241; Prakash Singh and others v. Union of India
and others [2006] 6 Suppl. SCR 473 : (2006) 8 SCC 1;
Common Cause (A Regd. Society) v. Union of India 2018
(4) SCALE 1; Shakti Vahini v. Union of India and others
D 2018 (5) SCALE 51 – referred to.
Jajbhay v Cassim 1939 AD 537; Miranda v. Arizona
384 U.S. 436 (1966) – referred to.
Per Chandrachud, J. (Concurring): (for himself and Sikri,
J.)
E
HELD: 1. As a matter of principle, there is no reason why
reliance upon the report of a Parliamentary Standing Committee
cannot be placed in proceedings under Article 32 or Article 136
of the Constitution. Once the report of a Parliamentary Committee
has been published, reference to it in the course of judicial
F proceedings will not constitute a breach of parliamentary privilege.
The validity of the report of a Parliamentary Committee cannot
be called into question in the court. No Member of Parliament or
person can be made liable for what is stated in the course of the
proceedings before a Parliamentary Committee or for a vote
G tendered or given. 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.
[Para 74][183-C-E]

H
KALPANA MEHTA v. UNION OF INDIA 21

The Constitution A
2.1 The first major principle which emerges from Article
105 is that it expects, recognizes and protects the freedom of
speech in Parliament. The principle enunciates a vital norm for
the existence of democracy. Parliament represents collectively,
through the representative character of its members, the voice B
and aspirations of the people. Free speech within the Parliament
is crucial for democratic governance. It is through the fearless
expression of their views that Parliamentarians pursue their
commitment to those who elect them. The power of speech exacts
democratic accountability from elected governments. The free
flow of dialogue ensures that in framing legislation and overseeing C
government policies, Parliament reflects the diverse views of
the electorate which an elected institution represents. [Para
14][129-E-G]
2.2 The Constitution recognizes free speech as a
fundamental right in Article 19(1)(a). A separate articulation of D
that right in Article 105(1) shows how important the debates and
expression of view in Parliament have been viewed by the drafts
persons. Article 105(1) is not a simple reiteration or for that matter,
a surplusage. It embodies the fundamental value that the free
and fearless exposition of critique in Parliament is the essence E
of democracy. Elected members of Parliament represent the
voices of the citizens. In giving expression to the concerns of
citizens, Parliamentary speech enhances democracy. Article 105(1)
emphasizes free speech as an institutional value, apart from it
being a part of individual rights. Elected members of the
legislature continue to wield that fundamental right in their F
individual capacity. Collectively, their expression of opinion has
an institutional protection since the words which they speak are
spoken within the portals of Parliament. This articulated major
premise is however subject to the provisions of the Constitution
and is conditioned by the procedure of Parliament embodied in G
its rules and standing orders. The recognition in clause (1) that
there shall be freedom of speech in Parliament is effectuated by
the immunity conferred on Members of Parliament against being
liable in a court of law for anything said or for any vote given in
Parliament or a committee. Similarly, a person who publishes a
H
22 SUPREME COURT REPORTS [2018] 4 S.C.R.

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
B
powers, privileges and immunities are such as existed
immediately before the enforcement of the 44th amendment to
the Constitution. 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
C 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. [Para 15][129-G-H; 130-A-F]
D
2.3 The procedure and conduct of business of Parliament
are governed by the rules made by each House. The rule making
authority is subject only to the provisions of the Constitution.
Until rules are framed, the procedure of Parliament was to be
governed by the rules of procedure and Standing Orders which
E applied to the legislature of the Dominion of India immediately
before the commencement of the Constitution (subject to
adaptations and modifications). [Para 16][131-C-D]
2.4 Article 119 embodies a special provision which enables
Parliament to regulate the procedure for and conduct of business
F in each House in relation to financial matters or for appropriation
of monies from the Consolidated Fund. 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
G 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 the exercise of those powers.
Those who perform the task-sometimes unenviable-of
maintaining order in Parliament are also protected, to enable them
to discharge their functions dispassionately. [Paras 17, 18][131-
H G-H; 132-C-D]
KALPANA MEHTA v. UNION OF INDIA 23

2.5 The fundamental principle which the Constitution A
embodies is in terms of its recognition of and protection to the
freedom of speech in Parliament. Freedom of speech has been
entrenched by conferring an immunity against holding a Member
of Parliament liable for what has been spoken in Parliament or
for a vote which has been tendered. The freedom to speak is
B
extended to other persons who have a right to speak in or take
part in the proceedings of Parliament. Parliament is vested with
the authority to regulate its procedures and to define its powers,
privileges and immunities. The same protection which extends
to Parliamentary proceedings is extended to proceedings in or
before the Committees constituted by each House. Parliament C
has been vested with a complete and exclusive authority to
regulate its own procedure and the conduct of its business. [Para
20][132-F-H]
Parliamentary Standing Committees
3.1 Article 105 of the Constitution recognizes committees D
of the Houses of Parliament. Rules of Procedure of the Lok Sabha
and the Rajya Sabha framed under Article 118(1) of the
Constitution inter alia provide for the organization and working
of these committees. The rules governing procedure and the
conduct of business in the Rajya Sabha provide for the constitution E
of the committees of the House. Chapter IX contains provisions
relating to legislation. Provisions have been made for Bills which
originate in the Rajya Sabha and for those which originate in the
Lok Sabha and are transmitted to the Rajya Sabha. [Paras 22,
23][134-D-E]
F
3.2 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. Rule 270
specifies the functions of the Standing Committees. Rule 274
envisages that the report of the Standing Committee “shall be G
based on broad consensus” though a member may record a
dissent. The report of the Committee is presented to the Houses
of Parliament. Under Rule 275, provisions applicable to Select
Committees on Bills apply mutatis mutandis to the Standing
Committees. Rule 277 indicates that the report of a Standing H
24 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Committee is to have persuasive value and is treated as advice
to the House. [Para 24][135-D-E; 136-C-D]
3.3 Department related Parliamentary Standing Committees
are Committees of the Houses of Parliament. The Committees
can regulate their procedure for requiring the attendance of
B persons and for the production of documents. The Committees
can hear experts or special interests. These Committees ensure
parliamentary oversight of the work of the ministries/departments
of government. As a part of that function, each Committee
considers demands for grants, examines Bills which are referred
to it, considers the annual reports of the ministry/department
C and submits reports on national long-term policy documents, when
they have been referred for consideration. The reports of these
Committees are published and presented to the Houses of
Parliament. They have a persuasive value and are advice given
by the Committee to Parliament Besides the Department related
D 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
E breach and to tender advise to members on questions involving
ethical standards. [Paras 24, 25][136-E-H; 137-A]
Parliamentary Privilege
4. The fundamental difference between the systems of
F parliamentary privilege in India and UK 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
G 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
H inheres in every person. Hence, judicial scrutiny of the exercise
KALPANA MEHTA v. UNION OF INDIA 25

of parliamentary privileges is not excluded where a fundamental A
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
B
on the basis of an irregularity of procedure. But where a violation
of a constitutional prescription is shown, judicial review cannot
be ousted. [Para 43][156-F-H; 157-A-C]
Re: Powers, Privileges and Immunities of State
Legislatures Special Reference No. 1 of 1964 (1965) 1
SCR 413; P V Narasimha Rao v. State (CBI/SPE) [1998] C
2 SCR 870 : (1998) 4 SCC 626; Raja Ram Pal v.
Hon’ble Speaker, Lok Sabha [2007] 1 SCR 317 :
(2007) 3 SCC 184; Amarinder Singh v. Special
Committee, Punjab Vidhan Sabha [2010] 4 SCR 1105 :
(2010) 6 SCC 113 – referred to. D
Bradlaugh v. Gossett (1884) 12 Q.B.D. 271;Dingle v.
Associated Newspapers Ltd. (1960) 2 Q.B. 405; Church
of Scientology of California v. Johnson-Smith (1972) 1
Q.B. 522; Pepper (Inspector of Taxes) v. Hart (1992) 3
W.L.R. 1032; Richard William Prebble v. Television New E
Zealand (“Prebble”)(1994) 3 W.L.R. 970; Reg. v.
Murphy (“Murphy”) (1986) 64 A.L.R. 498; Hamilton
v. AI Fayed (“Hamilton”)(2001) 1 A.C. 395; Toussaint
v. Attorney General of Saint Vincent and the Grenadines
(“Toussaint”)(2007) 1 W.L.R. 2825; Regina (Bradley
and Others) v. Secretary of State for Work and Pensions F
(Attorney General intervening) (2007) EWHC 242
(Admin); Office of Government Commerce v.
Information Commissioner (Attorney General
intervening) (2009) 3 W.L.R. 627; Wheeler v. The
Office of the Prime Minister (2014) EWHC 3815 G
(Admin); Wilson v. First County Trust Ltd. (2004) 1
AC816; Owen Robert Jennings v. Roger Edward
Wyndham Buchanan (2004) UKPC 36; Prebble v.
Television New Zealand Ltd (1994) 3 AII ER 407, PC;
R v Currie (1992) – referred to.
H
26 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Separation of powers: a nuanced modern doctrine
5.1 While assessing the impact of the separation of powers
upon the present controversy, certain precepts must be
formulated. Separation of powers between the legislature, the
executive and the judiciary is a basic feature of the Constitution.
B As a foundational principle which is comprised within the basic
structure, it lies beyond the reach of the constituent power to
amend. It cannot be substituted or abrogated. While recognizing
this position, decided cases indicate that the Indian Constitution
does not adopt a separation of powers in the strict sense.
Textbook examples of exceptions to the doctrine include the
C power of the executive to frame subordinate legislation, the power
of the legislature to punish for contempt of its privileges and the
authority entrusted to the Supreme Court and High Courts to
regulate their own procedures by framing rules. In making
subordinate legislation, the executive is entrusted by the
D legislature to make delegated legislation, subject to its control.
The rule making power of the higher judiciary has trappings of a
legislative character. The power of the legislature to punish for
contempt of its privileges has a judicial character. These
exceptions indicate that the separation doctrine has not been
adopted in the strict form in our Constitution. But the importance
E of the doctrine lies in its postulate that the essential functions
entrusted to one organ of the state cannot be exercised by the
other. By standing against the usurpation of constitutional powers
entrusted to other organs, separation of powers supports the rule
of law and guards against authoritarian excesses. Parliament and
F the State Legislatures legislate. The executive frames policies
and administers the law. The judiciary decides and adjudicates
upon disputes in the course of which facts are proved and the law
is applied. The distinction between the legislative function and
judicial functions is enhanced by the basic structure doctrine.
The legislature is constitutionally entrusted with the power to
G legislate. Courts are not entrusted with the power to enact law.
Yet, in a constitutional democracy which is founded on the
supremacy of the Constitution, 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
H enacting legislature lacks legislative competence or where there
KALPANA MEHTA v. UNION OF INDIA 27

is a violation of fundamental rights. A law which is constitutionally A
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
B
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 C
boundaries of constitutional entrustment. While the separation
of powers prevents the legislature from issuing a mere declaration
that a judgment is erroneous or invalid, the law-making body is
entitled to enact a law which remedies the defects which have
been pointed out by the court. Enactment of a law which takes
D
away the basis of the judgment (as opposed to merely invalidating
it) is permissible and does not constitute a violation of the
separation doctrine. That indeed is the basis on which validating
legislation is permitted. [Para 58][170-G-H; 171-A-H; 172-A-B]
5.2 While the separation of powers, as a principle,
constitutes the cornerstone of our democratic Constitution, its E
application in the actual governance of the polity is nuanced. The
nuances of the doctrine recognize that while the essential functions
of one organ of the state cannot be taken over by the other and
that a sense of institutional comity must guide the work of the
legislature, executive and judiciary, the practical problems which F
arise in the unfolding of democracy can be resolved through
robust constitutional cultures and mechanisms. The separation
doctrine cannot be reduced to its descriptive content, bereft of
its normative features. Evidently, it has both normative and
descriptive features. In applying it to the Indian Constitution,
the significant precept to be borne in mind is that no institution G
of governance lies above the Constitution. No entrustment of
power is absolute. [Para 59][172-B-D]
Ram Jawaya Kapur v State of Punjab [1955] 2 SCR
225; Re: Powers, Privileges and Immunities of State
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28 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Legislatures [1965] 1 SCR 413; Indira Nehru Gandhi
v. Raj Narain [1976] SCR 347 : (1975) Suppl SCC 1;
I R Coelho v State of Tamil Nadu [2007] 1 SCR 706 :
(2007) 2 SCC 1; State of Tamil Nadu v. State of Kerala
[2014] 12 SCR 875 : (2014) 12 SCC 696; I.N. Saksena
v. State of MP [1976] 3 SCR 237 : (1976) 4 SCC 750;
B
Indian Aluminium Co. v. State of Kerala [1996] 2 SCR
23 : (1996) 7 SCC 637; S.S Bola and Others v. B.D
Sardana & Others [1997] 2 Suppl. SCR 507 : (1997) 8
SCC 522; Shri Prithvi Cotton Mills Ltd. v. Broach
Borough Municipality [1970] 1 SCR 388 : (1969) 2
C SCC 283; Supreme Court Advocates-on-Record-
Association and Ors. v. Union of India (2016) 5 SCC
1; State of UP v. Jeet S Bisht [2007] 7 SCR 705 : (2007)
6 SCC 586; Bhim Singh v. Union of India [2010] 6
SCR 218 : (2010) 5 SCC 538; Supreme Court
Advocates-on-Record Association v. Union of India
D
(2016) 5 SCC 1; State of West Bengal v. Committee for
Protection of Democratic Rights, West Bengal [2010] 2
SCR 979 : (2010) 3 SCC 571; Common Cause v. Union
of India [2017] 3 SCR 291 : (2017) 7 SCC 158 –
referred to.
E Buckley v. Attorney General [1950] Irish Reports 67 –
referred to.
The Separation Of Powers And Legislative Interference
In Judicial Process, Constitutional Principles And
Limitations by Peter A Gerangelos Hart Publishing,
F 2009; Public Lawby A Tomkins Oxford University
Press, 2003; ‘Separating of Powers and Constitutional
Government’ by E Barendt[1995] Public Law 599 at
599-60; Studies in Constitutional Law by C Munro, 2nd
edn (London, Butterworths, 1999) at 304; Law Liberty
G and Justice, The Legal Foundations of British
Constitutionalism by TRS Allan (Oxford, Clarendon
Press, 1993) chs 3 and 8; Constitutional Justice, A
Liberal Theory of the Rule of Law by TRS Allan (Oxford,
Oxford University Press, 2001);‘A Loss of
Innocence?: Judicial Independence and the Separation
H
KALPANA MEHTA v. UNION OF INDIA 29

of powers’ by R Stevens (1999) 19 Oxford Journal of A
Legal Studies 365;Constitutionalism And The
Separation Of Powers by MJC Vile Oxford University
Press, 1967; ‘The Constitutional Separation of Powers’
by Aileen Kavanagh; The Constitutional Separation of
Powers by David Dyzenhaus and Malcolm Thorburn
B
(eds.); Philosophical Foundations of Constitutional Law
Oxford University Press, 2016 p 221; What is Good
about Legal Conventionalism?’ by D Kyritsis (2008) 14
Legal Theory 135, 154; Philosophical Foundations of
Constitutional Law, p 236;‘The Rehabilitation of
Separation of Powers in UK’ by K Malleson in L. de C
Groot-van Leeuwen and W Rombouts, Separation of
Powers In Theory And Practice: An International
Perspective (Nijmegen: Wolf Publishing, 2010) 99-122,
115; ‘Authority for Officials’ by J Waldron, in L. Meyer,
S. Paulson and T. Pogge (eds), Rights, Culture, And
D
The Law: Themes From The Legal And Political
Philosophy Of Joseph Raz (Oxford University Press,
2003) 45-70; ‘Institutional Approaches to Judicial
Restraint’ by J King (2008) 28 Oxford Journal Of Legal
Studies 409, 428; ‘The New Separation of Powers’- A
Theory For The Modern State by Eoin Carolan’s E
(2009)(Oxford University Press, 2009) 253; The
Problems with the Theory of Separation of Powers’ Eoin
Carolan SSRN, (2011) 26 – referred to.
A functional relationship:
6.1 Parliamentary committees owe their existence to F
Parliament. They report to Parliament. They comprise of the
members of Parliament. Their work consists of tendering advice
to the legislature. A parliamentary committee does not decide a
lis between contesting disputants nor does it perform an
adjudicatory function. A committee appointed by the House can G
undoubtedly receive evidence, including expert evidence, both
oral and documentary. A Select Committee may be appointed by
the House to scrutinize a Bill. When the committee performs its
task, its report is subject to further discussion and debate in the
House in the course of which the legislative body would decide
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30 SUPREME COURT REPORTS [2018] 4 S.C.R.

A as to whether the Bill should be enacted into law. The validity of
the advice which is tendered by a parliamentary committee 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
B
a matter to be considered by the legislature and by it alone. [Para
60][172-F-H; 173-A]
6.2 Department related standing committees are
constituted by Parliament to oversee the functioning of ministries/
departments of government. It is through the work of these
C 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
D the day. [Para 61][173-B-C]
6.3 The contents of the report of a parliamentary committee
may have a bearing on diverse perspectives. The report is
elucidated in order to determine whether, and if so to what extent,
they can form the subject matter of consideration in the course
E of adjudication in a court. The report of a parliamentary committee
may contain a statement of position by government on matters of
policy; the report may allude to statements made by persons who
have deposed before the Committee; the report may contain
inferences of fact including on the performance of government in
implementing policies and legislation; the report may contain
F findings of misdemeanor implicating a breach of duty by public
officials or private individuals or an evasion of law; or the report
may shed light on the purpose of a law, the social problem which
the legislature had in view and the manner in which it was sought
to be remedied. [Para 62][173-C-G]
G 6.4 The use of parliamentary history as an aid to statutory
construction is an area which poses the fewest problems. In
understanding the true meaning of the words used by the
legislature, the court may have regard to the reasons which have
led to the enactment of the law, the problems which were sought
H to be remedied and the object and purpose of the law. For
KALPANA MEHTA v. UNION OF INDIA 31

understanding this, the court may seek recourse to background A
parliamentary material associated with the framing of the law. [Para
63][173-G-H; 174-A]
Principles of Statutory Interpretation by Justice G P
Singh 14th edn.p 253 – referred to.
6.5 Reports of parliamentary committees may contain a B
statement of position by government on matters of policy. There
is no reason in principle to exclude recourse by a court to the
report of the committee at least 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 C
- may be taken note of by the court in a situation where the making
of the statement itself is not a contentious issue.[Para 64][174-
D-E]
6.6 Committees of Parliament attached to ministries/
departments of the government perform the function of holding D
government accountable to implement its policies and its duties
under legislation. The performance of governmental agencies may
form the subject matter of such a report. In other cases, the
deficiencies of the legislative framework in remedying social
wrongs may be the subject of an evaluation by a parliamentary
committee. The work of a parliamentary committee may traverse E
the area of social welfare either in terms of the extent to which
existing legislation is being effectively implemented or in
highlighting the lacunae in its framework. There is no reason in
principle why the wide jurisdiction of the High Courts under
Article 226 or of this Court under Article 32 should be exercised F
in a manner oblivious to the enormous work which is carried out
by parliamentary committees in the field. The work of the
committee is to secure alacrity on the part of the government in
alleviating deprivations of social justice and in securing efficient
and accountable governance. When courts enter upon issues of
public interest and adjudicate upon them, they do not discharge G
a function which is adversarial. The constitutional function of
adjudication in matters of public interest is in step with the role
of parliamentary committees which is to secure accountability,
transparency and responsiveness in government. In such areas,
the doctrine of separation does not militate against the court H
32 SUPREME COURT REPORTS [2018] 4 S.C.R.

A relying upon the report of a parliamentary committee. The court
does not adjudge the validity of the report nor for that matter
does it embark upon a scrutiny into its correctness. There is a
functional complementarity between the purpose of the
investigation by the parliamentary committee and the adjudication
by the court. To deprive the court of the valuable insight of a
B
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
C 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
D
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. [Para 66][175-
E C-H; 176-A-D]
6.7 There may, however, be contentious matters in the
report of a parliamentary committee in regard to which the court
will tread with circumspection. For instance, the report of the
committee may contain a finding of misdemeanor involving either
F officials of the government or private individuals bearing on a
violation of law. If the issue before the court for adjudication is
whether there has in fact been a breach of duty or a violation of
law by a public official or a private interest, the court would have
to deal with it independently and arrive at its own conclusions
based on the material before it. Obviously in such a case the
G finding by a Parliamentary Committee cannot constitute
substantive evidence before the court. The parliamentary
committee is not called upon to decide a lis or dispute involving
contesting parties and when an occasion to do so arises before
the court, it has to make its determination based on the material
H
KALPANA MEHTA v. UNION OF INDIA 33

which is admissible before it. An individual whose conduct has A
been commented upon in the report of a parliamentary committee
cannot be held guilty of a violation on the basis of that finding.
[Para 67][176-D-G]
Jyoti Harshad Mehta v The Custodian [2009] 12 SCR
1229 : (2009) 10 SCC 564; The Sole Trustee, Lok B
Shikshana Trust v The Commissioner of Income Tax,
Mysore [1976] 1 SCR 461 : (1976) 1 SCC 254; Onkar
Nath v The Delhi Administration [1977] 2 SCR 991 :
(1977) 2 SCC 611; Baburao Alias P B Samant v Union
of India [1988] SCR 431: (1988) Suppl. SCC 401 –
referred to. C

6.8 It has been held by this Court 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 D
duly adopted amounted to proof of the resolutions. The court
was required to take judicial notice under Section 57 of the
Evidence Act, 1872. [Para 68][179-D-E]
Conclusion
E
7.1 This Court must of necessity travel from a literal and
perhaps superficial approach, to an understanding of the essence
of what the Constitution seeks to achieve. Constitutional vision
is about achieving a social transformation which the Constitution
seeks to achieve is by placing the individual at the forefront of its
endeavours. Liberty, freedom, dignity and autonomy have F
meaning because it is to the individual to whom the Constitution
holds out an assurance of protecting fundamental human rights.
The Constitution is about empowerment. The democratic
transformation to which it aspires places the individual at the
core of the concerns of governance. For a colonial regime, G
individuals were subordinate to the law. Individuals were subject
to the authority of the state and their well-being was governed by
the acceptance of a destiny wedded to its power. Those
assumptions which lay at the foundation of colonial rule have
undergone a fundamental transformation for a nation of individuals
H
34 SUPREME COURT REPORTS [2018] 4 S.C.R.

A governed by the Constitution. The Constitution recognises their
rights and entitlements. Empowerment of individuals through the
enforcement of their rights is the essence of the constitutional
purpose. Hence, in understanding the issues which have arisen
before the Court in the present reference, it is well to remind
that since the Constitution is about transformation and its vision
B
is about empowerment, reading of precepts drawn from a colonial
past, including parliamentary privilege, must be subjected to a
nuance that facilitates the assertion of rights and access to justice.
The country no longer lives in a political culture based on the
subordination of individuals to the authority of the State. The
C 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. [Para 70][179-G; 180-A-F]
‘The Strange Alchemy of Life and Law’ by Justice Albie
Sachs Oxford University Press 2009 pp 32-33 –
D referred to.
7.2 Once the fulfilment of individual rights and human
freedoms are placed at the forefront of constitutional discourse,
the resolution of the instant case presents no difficulty. Individuals
access courts to remedy injustice. As institutions which are
E committed to the performance of a duty to facilitate the realisation
of human freedom, High Courts as well as this Court are under a
bounden obligation to seek and pursue all information on the
causes of injustice. Where the work which has been performed
by a coordinate constitutional institution-Parliamentary
Committee, throws light on the nature of the injustice or its causes
F and effects, constitutional theory which has to aid justice cannot
lead to hold that the court must act oblivious to the content of
the report. History and contemporary events across the world
are a reminder that black-outs of information are used as a willing
ally to totalitarian excesses of power. They have no place in a
G democracy. Placing reliance on the report of the Committee does
not infringe parliamentary privilege. No Member 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
H
KALPANA MEHTA v. UNION OF INDIA 35

such a function. Where an issue of fact becomes contentious, it A
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. [Para 73][181-F-H; 182-A-C]
B
7.3 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 C
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
of securing fundamental freedoms and realizing socio-economic
entitlements is complementary to the work of other organs of D
the State. The modern doctrine of separation of powers has moved
away from a ‘one organ-one function’ approach, to a more realistic
perspective which recognizes the complementarity in the work
which is performed by institutions of governance. Judicial review
is founded on the need to ensure accountable governance in the
administration of law as an instrument of realizing the rights E
guaranteed by the Constitution. If the function of judicial review
in facilitating the realization of socio-economic rights is construed
in the context of the modern notion of separation of powers, there
is no real conflict between the independence of the judicial
process and its reliance on published reports of Parliamentary F
Committees. Ultimately it is for the court in each case to
determine the relevance of a report to the case at hand and the
extent to which reliance can be placed upon it to facilitate access
to justice. Reports of Parliamentary Committees become part of
the published record of the State. As a matter of principle, there
is no reason or justification to exclude them from the purview of G
the judicial process, for purposes such as understanding the
historical background of a law, the nature of the problem, the
causes of a social evil and the remedies which may provide
answers to intractable problems of governance. The court will in
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36 SUPREME COURT REPORTS [2018] 4 S.C.R.

A the facts of a case determine when a matter which is contentious
between the parties would have to be adjudicated upon
independently on the basis of the evidence adduced in accordance
with law. [Para 74][182-D-H; 183-A-B]
Per Ashok Bhushan, J (Concurring):.
B HELD: 1. Reference is answered by holding that:
(i) According to sub-clause (2) of Article 105 of the
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
C 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
D 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.
E (iii) Section 57(4) of the 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
F committee”, that for those documents which are public
documents within the meaning of Evidence Act, there is no
requirement of any permission of Speaker of Lok Sabha
for producing such documents as evidence in Court.
(v) That mere fact that document is admissible in evidence
G 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 Reports the matter of noticing
H
KALPANA MEHTA v. UNION OF INDIA 37

an event or history no exception can be taken on such A
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
B
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 C
of a Statute as well as for considering the statement made
by a minister. When there is no breach of privilege in
considering the Parliamentary materials and reports of the
Committee by the Court for the above two purposes, there
is no valid reason for not accepting the submission of the D
petitioner that Courts are not debarred from accepting the
Parliamentary materials and reports, on record, before it,
provided the Court does not proceed to permit the parties
to question and impeach the reports.
(viii) The Constitution does not envisage supremacy of any E
of the three organs of the State. But, functioning of all the
three organs is controlled by the Constitution. Wherever,
interaction and deliberations among the three organs have
been envisaged, a delicate balance and mutual respect are
contemplated. All the three organs have to strive to achieve
the constitutional goal set out for ‘We the People’. Mutual F
harmony and respect have to be maintained by all the three
organs to serve the Constitution under which we all live.
(ix) 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 G
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.
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38 SUPREME COURT REPORTS [2018] 4 S.C.R.

A (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
B
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
C for adjudication, the Court is to decide the issues on the
basis of evidence and materials brought before it. [Para
152][252-A-H; 253-A-H; 254-A]
Parliamentary Privileges:
D 2. The Constitution of India by Article 105 and Article 194
gives constitutional recognition of parliamentary privileges.
Article 105 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. Sub-clause (1) of
E Article 105 gives recognition to ‘freedom of speech’ in
Parliament. Sub-clause (2) of Article 105 enumerates the
privileges and immunities of Members of Parliament. There is
absolute protection to a Member of Parliament against any
proceeding in any court, in respect of anything said or vote given
F by him in Parliament or any committee thereof. In the present
case, the parliamentary privileges with regard to Parliamentary
Standing Committee’s Report is to be examined. 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
G 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. Sub-clause (3) of Article 105
H of the Constitution of India begins with the words ‘in other
KALPANA MEHTA v. UNION OF INDIA 39

respects’. The words ‘in other respects’ clearly refer to powers, A
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 of the Constitution of India.
B
[Para 28-29, 31, 32, 34][194-C-D; 195-E-H; 196-A]
P. V. Narsimha Rao v. State (CBI/SPE), (1998) 4 SCC
626 : [1998] 2 SCR 870 – referred to.
‘Parliamentary Practice’ by Erskine May, Twenty-
fourth Edn; Halsbury’s Laws of England, Fifth Edn Vol. C
78 – referred to.
Privileges of House of Commons
3. The privileges of Indian Parliament are the privileges
which were enjoyed by the British House of Commons. From the
parliamentary privileges as enumerated, it is clear that there is a D
complete immunity to the Members of Parliament from any
proceeding for anything said in any committee of the Parliament.
Present is not a case where any proceedings are contemplated
against any Member of Parliament for anything which has been
said in a report of a Committee, involving a breach of any privilege E
under sub-clause (2) of Article 105 of the Constitution of India,
but whether, there is any breach of privileges of Parliament in
accepting, referring and relying on a Parliamentary Committee
Report by this Court. [Para 39, 40][200-E-F]
Special Reference No.1 of 1964 (UP Assembly Case) F
AIR 1965 SC 745 : 1965 AIR 745 : [1965] SCR 413 –
referred to.
‘Parliamentary Practice’ by Erskine May Twenty-
fourth Edn; Halsbury’s Laws of England, Fifth Edn Vol.
78; ‘Practice & Procedure of Parliament’ by M. N. Kaul
G
and S. L. Shakdher, Seventh Edn– referred to.
The Role of Parliamentary Committee:
4. Present is a case where Parliamentary Standing
Committee which has submitted the report is the Parliamentary
Standing Committee on Health and Family Welfare. The reports H
40 SUPREME COURT REPORTS [2018] 4 S.C.R.

A submitted by the Departmental Parliamentary Standing
Committees are reports of matters entrusted to it by Parliament,
by the Speaker. Parliament to which Council of Ministers are
responsible, supervises the various works done by different
Departments of the Government. Apart from the supervision,
the committees also make recommendations and issue directions.
B
Directions and recommendations are to be implemented by
different Government Departments and action taken reports are
submitted before the Parliament to be considered by
Departmental Standing Committees. The functions of the
committees thus, play an important role in functioning of the entire
C Government which is directly related to the welfare of the people
of the country. [Para 49, 50][203-E-H; 204-A-B]
‘Constitutional History of England’ by F. W. Maitland;
‘Parliamentary Procedure,’ by Dr. Subhash C. Kashyap
Second Edn; ‘Practice & Procedure of Parliament’ by
D M. N. Kaul and S. L. Shakdher Seventh Edn– referred
to.
Publication of Parliamentary Reports
5. The rules framed under Article 118 of the Constitution
thus clearly permit the publication of parliamentary proceedings.
E Apart from publication of the proceedings of the Parliament,
including the reports of the committees, now, they are also
permitted to be broadcast on electronic media. The publication
of the reports not being only permitted, but also are being
encouraged by the Parliament. The general public are keenly
F interested in knowing about the parliamentary proceedings
including parliamentary reports which are steps towards the
governance of the country. As per rules framed under Article
118, both for Lok Sabha and Rajya Sabha, the Parliamentary
Standing Committees are to follow the procedure after constitution
of the committee and till the reports are submitted to the Speaker.
G During the intervening period, when the preparation of reports
is in process and it is not yet submitted to the Speaker and
published, there is no right to know the outcome of the reports.
It is submitted that the right to know about the reports only arises
when they have been published for use of the public in general.
H Thus, no exception can be taken in the petitioners obtaining 72nd
KALPANA MEHTA v. UNION OF INDIA 41

and 81st Reports of Parliamentary Standing Committee. [Paras A
55, 56][206-H; 207-A-D]
Rules and procedures regarding permission for giving
evidence in courts regarding proceedings in parliament
6. The papers and proceedings of Parliament have been
permitted to be given in evidence in Courts of law by the B
Parliament. After the enforcement of Right of Information Act,
2005, on the basis of a report submitted by the Committee of
Privileges, the procedure for making available documents relating
to the proceedings of the House has been modified. as a matter
of fact the Parliamentary materials including reports and other C
documents have been sent from time to time by the permission
of the Parliament itself to be given as evidence in Courts of
law.[Paras 57, 58, 60][207-E; 208-E; 210-H]
‘Practice & Procedure of Parliament’ by M. N. Kaul
and S. L. Shakdher, Seventh Edn; Raj Sabha at Work, D
Third Edn (2017) p 25 – referred to.
Applicability of the Evidence Act, 1872, in the context of
parliamentary proceedings:
7.1 A plain reading of Section 57 sub-section (4) makes it
clear that the course of proceeding of Parliament and the E
Legislature, established under any law are facts of which judicial
notice shall be taken by the Court. Art. 118 (1) read with Rules
framed for conduct of business in Lok Sabha and Rajya Sabha
makes it clear that the proceedings of Parliamentary Standing
Committee including its Report are proceedings which are F
covered by the expression “course of proceeding of Parliament”.
It cannot be said that that Parliamentary Standing Committee
Reports are not covered by expression “course of proceeding of
Parliament”, hence no benefit can be taken of this provision.
Further, the effect of Section 57(4) in no manner is diminished by
the fact that amendments were made in Section 57(4) by the G
Presidential Adaptation Order. [Paras 62-64, 67-68][211-G-H;
212-C, F]
7.2 According to Section 74 documents forming the acts,
or records of the acts of Legislature of any part of India is a public
document. Parliament has already adopted report of privilege H
42 SUPREME COURT REPORTS [2018] 4 S.C.R.

A committee that for those documents which are public documents
within the meaning of Evidence Act, there is no requirement of
any permission of Speaker of Lok Sabha for producing such
documents as evidence in Court. However, 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
B
of the documents also are true and correct. [Para 69][213-C-D]
Right Honourable Gerald Lord Strickland v. Carmelo
Mifsud Bonnici, AIR 1935 PC 34; Standard Chartered
Bank v. A.B.F.S.L & Ors. 2001 (4) BOM.LR 520 –
referred to.
C
Nature And Extent of Parliamentary Privileges Regarding
Reports of Committees of British Parliament
8.1 There is no doubt that reports of the Standing
Committee of the Parliament are also Parliamentary proceedings.
D Participation of members of Parliament in normal course is usually
by a speech but their participation in Parliamentary proceedings
is not limited to speaking only. Participation of members of the
Parliament is also by various other recognised forms such as
voting, giving notice of a motion, presenting a petition or
submitting a report of a Committee, the modern forms of
E expression by which the wish and will of Parliamentarians is
expressed. The report submitted by Standing Committee of
Parliament is also another form of expression. Thus, the
Parliamentary privileges which are contained in Sub-clause (2) of
Article 105 to individual Parliamentary member are also extended
F by virtue of Sub-clause (3) of Article 105 to the Parliamentary
Committee Reports. The Parliamentary privileges contained in
Article IX of Bill of Rights thus also protect the Parliamentary
Standing Committee Reports. [Para 78][217-C-E]
Parliamentary Practice by Erskine May, 24th edn. –
G referred to.
8.2 It is now well settled that proceedings undertaken in
the Parliament including a report of the Standing Committee
cannot be challenged before any Court. The word ‘challenge’
includes both ‘impeaching’ and ‘questioning’ the Parliamentary
Committee Reports. [Para 83][220-B]
H
KALPANA MEHTA v. UNION OF INDIA 43

8.3 All references to Parliamentary proceedings and A
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
B
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. Both parties cannot impeach or question the report.
In so far as the question of unfair disadvantage is concerned,
both the parties are free to establish their claim or objection by C
leading evidence in the court and by bringing materials to prove
their point. The court has the right to decide the ‘lis’ on the basis
of the material and evidence brought by the parties. Any
observation in the report or inference of the Committee cannot
be held to be binding between the parties or prohibit either of
D
the parties to lead evidence to prove their stand in court of law.
Unfair disadvantage stands removed in the above manner. [Para
100][230-F-H; 231-A-B]
8.4 Parliamentary materials including report of a Standing
Committee of a Parliament can very well be accepted in evidence
by a Court. However, in view of Parliamentary privileges as E
enshrined in Article IX of Bill of Rights, the proceedings of
Parliament can neither be questioned nor impeached in Court of
Law. [Para 101][231-C-D]
8.5 The Rules of Parliament, procedure permit the
production of Parliamentary materials in a Court of Law as F
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 Evidence Act, 1874, which regulates the admission of G
evidence in Court of Law, also refers to proceedings in Parliament
as a public document of which Court shall take Judicial notice.
All these factors lead to conclude that there is no violation of any
Parliamentary privilege in accepting Reports of Parliamentary
Committee in Court. [Para 104][232-C-D]
H
44 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 8.6 When Parliamentary Reports cannot be questioned or
impeached in Court of Law for what use they may be looked into
by Court of Law. The authorities have laid down that for events
which take place in Parliament, the facts which was stated before
the Parliament or a Committee, are facts which can be looked
into. Further when Parliamentary Reports can be looked into for
B
few purposes as has been conceded, there is no justification in
reading any prohibition for use of Reports for other purposes
which are legal and lawful, without breach of any privilege. [Para
105][232-E-F]
Catering Cleaners of Southern Railway v. Union of
C India & Anr. (1987) 1 SCC 700 : [1987] 2 SCR 164;
Gujarat Electricity Board v. Hind Mazdoor Sabha &
Ors. (1995) 5 SCC 27 : [1995] 1 Suppl. SCR 173; State
of Maharashtra v. Milind & Ors. (2001) 1 SCC 4 :
[2000] 5 Suppl. SCR 65; Federation of Railway Officers
D Association v. Union of India (2003) 4 SCC 289 : [2003]
2 SCR 1085; Ms. Aruna Roy & Ors. v. Union of India
& Ors. (2002) 7 SCC 368 : [2002] 2 Suppl. SCR 266;
M.C. Mehta v. Union of India 2017 SCC Online 394;
Kishan Lal Gera v. State of Haryana & Ors., (2011) 10
SCC 529 : [2011] 7 SCR 722; Modern Dental College
E and Research Centre v. State of Madhya Pradesh &
Ors., (2016) 7 SCC 353; Lal Babu Priyadashi v. Amritpal
Singh, (2015) 16 SCC 795 : [2015] SCR 1009 –
referred to.
Stockdale v. Hansard 9 A.D. & E.2 p 1112; Bradlaugh
F v. Gossett (1884) 12 Q.B.D. 271; Dingle v Associated
Newspapers Ltd. & Ors. (1960) 2 Q.B. 405; Church of
Scientology of California v. Johnson-Smith (1972) 1
Q.B. 522; Pepper (Inspector of Taxes) v. Hart and
related appeals 1993(1) All ER 42; Prebble v. Television
G New Zealand Ltd Privy Council (1994) 3 All ER 407;
R. v. Murphy (1986) 5 NSWLR 18; Wilson v. First
Country Trust Ltd. (2003) UKHL 40; Touissant v.
Attorney General of St. Vincent (2007) UKPC 48; Office
of Government of Commerce v. Information
Commissioner (2010) QB 98; Federation of Tour
H
KALPANA MEHTA v. UNION OF INDIA 45

Operators v. HM Treasury (2007) EWHC 2062 A
(Admin); R v. Secretary of State for Trade and others,
ex parte Anderson Strathclyde plc, 1983 (2) All ER 233
– referred to.
Exclusionary Rules How Far Applicable In The Indian
Context B
9. This Court has held that Parliamentary materials can be
looked into, that too after considering the exclusionary rules
which prohibited use of Parliamentary materials in courts. It is
not disputed that Parliamentary reports and materials can be used
for the purposes of taking into consideration legislative history C
for interpretation of statute as well as for considering the
statement made by a Minister. When there is no breach of
privilege in considering the Parliamentary materials and reports
of the Committee by the Court for the above two purposes, there
is no valid reason for not accepting the submission of the
petitioner that courts are not debarred from accepting the D
Parliamentary materials and reports as evidence before it,
provided the court does not proceed to permit the parties to
question or impeach the reports. [Para 110][235-D-F]
State of Mysore v. R.V. Bidap (1974) 3 SCC 337 : [1974]
1 SCR 589; R.S. Nayak v. A.R. Antulay (1984) 2 SCC E
183 : [1984] 2 SCR 495; Jyoti Harshad Mehta (Mrs)
and others v. Custodian and others (2009) 10 SCC 564
: [2009] 12 SCR 1229; State Bank of India v. National
Housing Bank and others (2013) 16 SCC 538; Common
Cause : A Registered Society v. Union of India (2017) F
(7) SCC 158 : [2017] 3 SCR 291 – referred to.
Separation of powers and maintaining a delicate balance
between the legislature, executive and judiciary:
10.1 There is no parliamentary privilege that Parliamentary
Committee Reports or other parliamentary materials cannot be G
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 sovereignty in England and
Constitutional supremacy in this country. It is well settled that
H
46 SUPREME COURT REPORTS [2018] 4 S.C.R.

A any law made by Parliament, which violates the fundamental rights
guaranteed under Part III of the Constitution, can be set aside
by this Court in exercise of Jurisdiction of judicial review which
has been granted by the Constitution to this Court. Parliamentary
sovereignty, as enjoyed by the United Kingdom is not a parallel
example in reference to functioning of different organs in this
B
country, as controlled by the Constitution of India. The
parliamentary privilege, as guaranteed under Article 9 of Bill of
Rights, (1688) that no proceeding of Parliament can be questioned
and impeached thus has to be applied, subject to express
constitutional provisions as contained in Constitution of India.
C [Para 122][240-C-E]
10.2 Although, there is no rigid separation of powers under
the Constitution, but functions of all the three wings have been
sufficiently differentiated and each has freedom to carry out its
functions unhindered by any other wing of the State. However, in
D functioning of all the three organs, a delicate balance, mutual
harmony and respect have to be maintained for true working of
the Constitution. [Para 123][240-F-G]
Ram Jawaya Kapur v. State of Punjab AIR 1955 SC
549 : [1955] SCR 225; Kesavananda Bharti v. State of
E Kerala AIR 1973 SC 1461 : [1973] Suppl. SCR 1 –
referred to.
Article 121 & Article 122 of the Constitution of India:
11.1 Although, heading of Article 122 reads ‘Courts not to
enquire into proceedings of the Parliament’ but substantive
F provision of Constitution, as contained in sub-clause (1) of Article
122 debars the Court from questioning the validity of any
parliamentary proceeding on the ground of any alleged irregularity
or procedure. The embargo on the Court to question the
proceeding is thus limited on the aforesaid ground alone. There
G is no total prohibition from examining the validity of the proceeding
if the proceedings are clearly in breach of fundamental rights or
other constitutional provisions. On the strength of Article 122, it
cannot be contended that Parliamentary Standing Committee
Reports can neither be admitted in evidence in Court nor the
said reports can be utilised for any purpose. [Paras 125, 128][241-
H B-C; 242-D]
KALPANA MEHTA v. UNION OF INDIA 47

11.2 The Constitution of India empowers this Court in A
exercise of judicial review to annul the legislation of a Parliament
if it breaches the fundamental rights, guaranteed under Part III
of the Constitution. Thus, the privileges which are enjoyed by
the Indian Legislature have to be considered in light of the
provisions of the Indian Constitution. These are the clear
B
exceptions to the parliamentary privileges, as applicable in House
of Commons on the strength of Article IX of Bill of Rights, 1688.
[Para 126][241-H; 242-A]
Comments on reports of parliamentary committee whether
breach of privilege:
C
13.1 The freedom of speech and expression is one of the
most cherished fundamental rights guaranteed and secured by
the Constitution. [Para 129][242-E]
13.2 The freedom of speech and expression as guaranteed
under Article 19(1)(a) is available to a citizen to express his opinion D
and comment which is also available with regard to court
proceedings as well. In respect of Parliamentary proceedings,
the said right is not stifled unless the comment amounts to
reflection or personal attack on individual Member of Parliament
or to the House in general. [Para 135][245-B]
E
13.3 The power to punish for contempt is a privilege
available to Parliament which is defined as ‘keynote of
Parliamentary Privileges’. 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 F
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. [Paras 141,
142][247-G-H; 248-A]
13.4 In the instant case, the respondents contended that in G
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
H
48 SUPREME COURT REPORTS [2018] 4 S.C.R.

A allow the petitioners to rely on the report. No party is precluded
in making fair comments on the Parliamentary Committee Report
which comments remain within the bounds of a fair comments
and does not transgress the limits prescribed for fair comments.
The Parliamentary Committee Reports when published, the press
are entitled to make fair comments. There is no reason prohibiting
B
the parties who were referred to in the Parliamentary Committee
Report to make such fair comments or criticism of the Report as
permissible under law without breach of privilege. [Para 143][248-
B-D]
Romesh Thappar v. The State of Madras [1950] SCR
C 594; Bennett Coleman & Co. and Ors. v. Union of India
(UOI) and Ors. AIR 1973 SC 106 : [1973] 2 SCR 757;
M.S.M. Sharma v. Sri Krishna Sinha and others AIR
1959 SC 395 : [1959] Suppl. SCR 806; Special
Reference No.1 of 1964 [1965] 1 SCR 413 – referred
D to.
Wason v. Walter 1869 QB Vol. 4 p. 73; Adam v. Ward
1917 AC 309; Pepper v. Hart (House of Lords) 1993
AC 593; R v. Murphy 1986 (5) NSWLR 18, Hunt, J.;
Burdett v. Abbot (1811) 104 ER 559, 561– referred to.
E The Law, Privileges, Proceedings and Usage of
Parliament by Erskine May (Lexis Nexis, 24 th edn.,
2011) – referred to.
Adjudication in courts and Parliamentary Committee
Report
F
14.1 ‘Adjudication’ is the power of Court to decide and
pronounce a judgment and carry it into effect between the persons
and parties who bring a cause before it for a decision. Both for
civil and criminal cases people look forward to Courts for justice.
To decide controversy between its subject had always been
G treated as a part of sovereign functions. Constitutional law
developments emphasised separation of powers of Governmental
functions for protecting rights and liberties of people. [Para
144][248-E-F]
14.2 In our Constitution although there is no strict
H
KALPANA MEHTA v. UNION OF INDIA 49

separation of powers of the three branches that is Legislature, A
Judicature and Executive but Constitutional provisions entrust
separate functions of each organ with clarity which makes it clear
that our Constitution does not contemplate assumption by one
organ function which belongs to another organ of the State. [Para
146][249-B]
B
14.3 Adjudication of rights of the people is a function not
entrusted to the Legislature of the country. Apart from legislation
our Parliament has become multi-functional institution performing
various roles, namely, inquisitorial, financial and administrative
surveillance, grievance redressal and developmental. Parliament,
however, is not vested with any adjudicatory jurisdiction which C
belongs to judicature under the Constitutional Scheme. [Para
147][250-D]
14.4 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 D
procedural safeguards which include right to be heard and right
to produce evidence. [Para 148][250-H; 251-A]
14.5 The apprehension of the respondents that their case
shall be prejudiced if this Court accepts the Parliamentary
Committee Report in evidence, is misplaced. By acceptance of a E
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 the basis of evidence and materials brought before it
and in which adjudication Parliamentary Committee Report may F
only be one of the materials, what weight has to be given to one
or other evidence is the adjudicatory function of the Court which
may differ from case to case. The Reports cannot be treated as
conclusive or binding of what has been concluded in the Report.
When adjudication of any claim fastening any civil or criminal
liability on an individual is up in a Court of law, it is open for a G
party to rely on all evidences and materials which is in its power
and Court has to decide the issues on consideration of entire
material brought before it. When the Parliamentary Committee
Report is not adjudication of any civil or criminal liability of the
private respondents, their fear that acceptance of report shall H
50 SUPREME COURT REPORTS [2018] 4 S.C.R.

A prejudice their case is unf ounded. Thus, by accepting
Parliamentary Committee Report on the record in this case and
considering the Report by this Court, the respondents’ right to
dispel conclusions and findings in the Report are not taken away
and they are free to prove their case in accordance with law. [Para
150][251-D-H]
B
I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu (2007)
2 SCC 1 : [2007] 1 SCR 706; State of Karnataka v.
Union of India (1977) 4 SCC 608 : [1978] 2 SCR 1–
referred to.
C Dingle v Associated Newspapers Ltd. (1960) 2 Q.B.
405; L’Esprit des Lois, by Montesquieu – referred to.
Case Law Reference
Judgment of Dipak Misra, CJI

D (2017) 7 SCC 307 referred to Para 4
[1973] Suppl. SCR 1 referred to Para 13
[1978] 1 SCR 1 referred to Para 14
[2007] 1SCR 706 referred to Para 14
E [1952] SCR 284 referred to Para 17
[1954] SCR 1 referred to Para 17
[1959] Suppl. 2 SCR 8 referred to Para 18
(2017) 7 SCC 59 referred to Para 19
F [1976] SCR 347 referred to Para 21
[1985] 3 SCR 676 referred to Para 22
[2014] 12 SCR 875 referred to Para 22
[2010] 6 SCR 218 referred to Para 23
G [1997] 3 Suppl. SCR 705 referred to Para 24
[2003] 2 SCR 1085 referred to Para 24
[2004] 3 Suppl. SCR 365 referred to Para 24
[2007] 12 SCR 1084 referred to Para 24
H
KALPANA MEHTA v. UNION OF INDIA 51

[1989] 3 SCR 19 referred to Para 25 A
[1989] 3 SCR 316 referred to Para 28
[2007] 9 SCR 130 referred to Para 31
(2005) 13 SCC 287 referred to Para 31
[1989] 3 SCR 488 referred to Para 31 B
[2014] 11 SCR 463 referred to Para 32
[1994] 1 SCR 579 referred to Para 32
[1997] 1 Suppl. SCR 671 referred to Para 32
C
[2011] 6 SCR 443 referred to Para 32
[1998] 1 SCR 1120 referred to Para 32
[1955] SCR 415 referred to Para 33
[1958] SCR 1295 referred to Para 34
D
[1994] 2 SCR 644 referred to Para 36
[2011] 3 SCR 366 referred to Para 37
[2004] 1 SCR 1038 referred to Para 38
(2017) 10 SCC 1 referred to Para 39
E
[1993] 2 Suppl. SCR 659 referred to Para 40
[1950] SCR 88 referred to Para 41
(1970) 1 SCC 248 referred to Para 41
[1962] 3 SCR 842 referred to Para 41 F
[1974] 1 SCR 1 referred to Para 41
[1975] 3 SCC 198 referred to Para 41
[1975] 2 SCR 832 referred to Para 41
[1978] 1 SCC 248 referred to Para 41 G
[2006] 7 Suppl. SCR 336 referred to Para 43
[2001] 3 Suppl. SCR 191 referred to Para 44
[1981] 1 SCR 206 referred to Para 44
[2014] 9 SCR 965 referred to Para 45 H
52 SUPREME COURT REPORTS [2018] 4 S.C.R.

A [2006] 5 Suppl. SCR 1 referred to Para 47
[1973] 1 SCR 172 referred to Para 47
[1978] 1 SCR 423 referred to Para 48
[1965] SCR 413 referred to Para 88
B [2007] 1 SCR 317 referred to Para 94
[1993] 1 SCR 319 referred to Para 98
[1996] 2 SCR 876 referred to Para 98
[1984] 2 SCR 495 referred to Para 107
C
[1964] SCR 371 referred to Para 108
[1982] 1 SCR 629 referred to Para 109
[1995] 6 Suppl. SCR 371 referred to Para 109
[2013] 13 SCR 148 referred to Para 109
D
[1972] 2 SCR 609 referred to Para 109
[1976] 3 SCR 504 referred to Para 109
[1999] 2 SCR 589 referred to Para 109
[2008] 4 SCR 1 referred to Para 110
E
[1980] 2 SCR 77 referred to Para 111
[1981] 1 SCR 469 referred to Para 114
[1976] 2 SCR 373 referred to Para 114

F [2003] 6 Suppl. SCR 151 referred to Para 115
[1976] 1 SCR 461 referred to Para 122
[1987] 2 SCR 164 distinguished Para 128
[2000] 5 Suppl. SCR 65 distinguished Para 129
G [2002] 2 Suppl. SCR 266 distinguished Para 129
(2017) 7 SCC 243 distinguished Para 131
[2015] SCR 1009 distinguished Para 132
[1995] 1 Suppl. SCR 173 distinguished Para 133
H (2016) 7 SCC 353 distinguished Para 133
KALPANA MEHTA v. UNION OF INDIA 53

[2011] 7 SCR 722 distinguished Para 133 A
[1984] 2 SCR 795 referred to Para 137
[1997] 3 Suppl. SCR 404 referred to Para 137
[2006] 6 Suppl. SCR 473 referred to Para 137
2018 (4) SCALE 1 referred to Para 137 B
2018 (5) SCALE 51 referred to Para 137
Judgment of Chandrachud, J.
[1965] 1 SCR 413 referred to Para 39
C
[1998] 2 SCR 870 referred to Para 40
[2007] 1 SCR 317 referred to Para 41
[2010] 4 SCR 1105 referred to Para 42
[1955] 2 SCR 225 referred to Para 51
D
[1965] 1 SCR 413 referred to Para 51
[1973] Suppl. SCR 1 referred to Para 51
[1976] SCR 347 referred to Para 51
[2007] 1 SCR 706 referred to Para 51
E
[2014] 12 SCR 875 referred to Para 51
[1976] 3 SCR 237 referred to Para 51
[1996] 2 SCR 23 referred to Para 52
[1997] 2 Suppl. SCR 507 referred to Para 52 F
[1970] 1 SCR 388 referred to Para 52
(2016) 5 SCC 1 referred to Para 52
[2007] 7 SCR 705 referred to Para 53
[2010] 6 SCR 218 referred to Para 54 G
(2016) 5 SCC 1 referred to Para 55
[2010] 2 SCR 979 referred to Para 56
[2017] 3 SCR 291 referred to Para 57
[2009] 12 SCR 1229 referred to Para 63 H
54 SUPREME COURT REPORTS [2018] 4 S.C.R.

A [1976] 1 SCR 461 referred to Para 67
[1977] 2 SCR 991 referred to Para 68
[1998] SCR 431 referred to Para 68
Judgment of Ashok Bhushan, J.
B [1998] 2 SCR 870 referred to Para 33
[1965] SCR 413 referred to Para 37
2001 (4) BOM.LR 520 referred to Para 71
[1987] 2 SCR 164 referred to Para 102
C
[1995] 1 Suppl. SCR 173 referred to Para 102
[2000] 5 Suppl. SCR 65 referred to Para 102
[2003] 2 SCR 1085 referred to Para 102
[2002] 2 Suppl. SCR 266 referred to Para 102
D
2017 SCC Online 394 referred to Para 102
[2011] 7 SCR 722 referred to Para 102
(2016) 7 SCC 353 referred to Para 102
[2015] SCR 1009 referred to Para 102
E
[1974] 1 SCR 589 referred to Para 107
[1984] 2 SCR 495 referred to Para 108
[2009] 12 SCR 1229 referred to Para 111

F (2013) 16 SCC 538 referred to Para 115
[2017] 3 SCR 291 referred to Para 117
[1955] SCR 225 referred to Para 120
[1973] Suppl. SCR 1 referred to Para 121
G [1950] SCR 594 referred to Para 129
[1973] 2 SCR 757 referred to Para 130
[1959] Suppl. SCR 806 referred to Para 134
[1965] 1 SCR 413 referred to Para 139
H
KALPANA MEHTA v. UNION OF INDIA 55

[2007] 1 SCR 706 referred to Para 146 A
[1978] 2 SCR 1 referred to Para 147
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
558 of 2012.
Under Article 32 of the Constitution of India.
B
WITH
W. P. (C) No. 921 of 2013.
K. K. Venugopal, AG, Ms. Pinky Anand, ASG, Colin Gonsalves,
Anand Grover, Harish N. Salve, Gourab Banerji, Shyam Divan, Sr. Advs.,
Ms. Karuna Nundy, Ms. Megha Agarwal, Ms. Tanya Agarwal, Ms. C
Jyoti Mendiratta, Purushottam Sharma Tripathi, Mukesh Kumar Singh,
Priyam Cherian, Loxraine Misquith, Vijayant Singh, Ms. Shrinidhi Rao,
Ravi Chandra Prakash, Shantanu Jugtawat, L. Nidhiram Sharma, Rupesh
Kumar, D.L. Chidanand, Ritesh Kumar, Wasim A. Qadri, Ms. Shraddha
Deshmukh, Ms. Saudamini Sharma, Gurmeet Singh Makker, Sumit, Rishi
D
Kant Singh, Ms. N. Annapoorani, Ms. Hemantika Wahi, Ms. Jesal Wahi,
Ms. Shodhika Sharma, R.N. Karanjawala, Mrs. Nandini Gore, Ms.
Debmalya Banerjee, Ms. Tahira Karanjawala, Ms. Trishala Kulkarnil,
Mohit Mudgal, Ms. Natasha Sehrawat, Ms. Gayatri Gosswami, Manish
Sharma, Kartik Bhatnagar, Karan Lahiri, Aviral Kapoor, Mrs. Manik
Karanjawala (for M/s. Karanjawala & Co.), Jaya Krishnan Kumar, Riku E
Sarma, Ms. Vartika Sahay, Ms. Krishna Sarma, Dav. Ms. Manisha Singh,
Navnit Kumar, (for M/s. Corporate Law Group), Ms. C. K. Sucharita,
S. Udaya Kumar Sagar, Mrityunjai Singh, M/s. Parekh & Co., Guntur
Prabhakar, Ms. Prerna Singh, Advs. for the appearing parties.
The Judgments of the Court were delivered by F
DIPAK MISRA, CJI.[For himself and A.M. Khanwilkar, J.]
I N D E X*

S. No. Heading Page No.
G
A. Introduction 3

B. The factual background 4

* Ed. note: The pages mentioned in the index above giving the scheme of the judgment
denotes the page number of the original judgment. H
56 SUPREME COURT REPORTS [2018] 4 S.C.R.

A
B.1 The Reference 6
N
C. Contentions of the petitioners 8
D. Contentions of the respondents 12 O
E. Supremacy of the Constitution 14 P
B
F. Constitutional limitations upon the 17 Q
legislature
G. Doctrine of separation of powers 21

H. Power of judicial review 28
C
I. Interpretation of the Constitution – The 34
nature of duty cast upon this Court
I.1 Interpretation of fundamental 40
rights
I.2 Interpretation of other 42
D constitutional provisions
J. A perspective on the role of Parliamentary 48
Committees
K. International position of Parliamentary 54
Committees
K.1 Parliamentary Committees in 54
E England
K.2 Parliamentary Committees in 55
United States of America
K.3 Parliamentary Committees in 58
Canada
F K.4 Parliamentary Committees in 59
Australia
L. Parliamentary Committees in Indi a 60

L.1 Rules of Procedure and Conduct 65
of Business in Lok Sabha
G M. Parliamentary privilege 71
M.1 Parliamentary privilege under 72
the Indian Constitution
M.2 Judici al review of parliam entary 81
proceedings and its privilege
H
KALPANA MEHTA v. UNION OF INDIA 57
[DIPAK MISRA, CJI]

A
6
N. Reliance on parliamentary proceedings as 91
8 external aids
12 O. Section 57(4) of the Indian Evidence Act 101
14 P. The decisions in which parliamentary standing 106
committee report/s have been referred to B
17 Q. Conclusions 113

21
A. Introduction
28 In a parliamentary democracy where human rights are placed on
a high pedestal and a rights-oriented Constitution is sought to be C
34
interpreted, it becomes the obligation on the part of the Constitutional
40
Courts to strike a balance between emphatic hermeneutics on progressive
perception of the provisions of the Constitution on the one hand and the
42 self-imposed judicial restraint founded on self-discipline on the other hand,
regard being had to the nature and character of the article that falls for
D
48 interpretation and its constitutional vision and purpose. The Courts never
allow a constitutional provision to be narrowly construed keeping in view
54 the principle that the Constitution is a living document and organic which
has the innate potentiality to take many a concept within its fold. The
54 Courts, being alive to their constitutional sensibility, do possess a
progressive outlook having a telescopic view of the growing jurisprudence. E
55 Nonetheless, occasions do arise where the constitutional consciousness
is invoked to remind the Court that it should not be totally oblivious of the
58 idea, being the final arbiter of the Constitution, to strike the requisite
balance whenever there is a necessity, for the founding fathers had wisely
conceived the same in various articles of the grand fundamental document.
59 F
In the present case, this delicate balance is the cardinal issue, as it seems
to us, and it needs to be resolved in the backdrop of both the principles.
60
The factual score that has given rise to the present reference to be dealt
65 with by us is centered on the issue as to whether a Parliamentary Standing
Committee (PSC) report can be placed reliance upon for adjudication of
71 a fact in issue and also for what other purposes it can be taken aid of. G
That apart, to arrive at the ultimate conclusion, we will be required to
72
navigate and steer through certain foundational fundamentals which take
81 within its ambit the supremacy of the Constitution, constitutional
limitations, separation of powers, power of judicial review and
self-imposed restraint, interpretation of constitutional provisions in many
H
58 SUPREME COURT REPORTS [2018] 4 S.C.R.

A a sphere, the duty of parliamentary committee in various democracies
and 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
B 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
C 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,
D 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 of majority without
the consent of their parents/guardians was also highlighted. Be it stated,
E it was also projected that women, though being fully informed, had
become victims of the said vaccination. In essence, the submissions
were advanced pertaining to the hazards of the vaccination and obtaining
of consent without making the persons aware of the possible after effects
and the consequences of the administration of such vaccine. The two-
Judge Bench had passed certain orders from time to time with which
F we are not presently concerned.
3. In the course of hearing before the two-Judge Bench, learned
counsel for the writ petitioners had invited the attention of the Bench to
a report of the Parliamentary Standing Committee (PSC) and the Court
had directed the Governments to file affidavits regarding the steps taken
G keeping in view the various instructions given from time to time including
what has been stated in the report of the PSC. Certain affidavits were
filed by the respondents stating about the safety of the vaccination and
the steps taken to avoid any kind of hazard or jeopardy. That apart, the
allegations made in the writ petitions were also controverted.
H
KALPANA MEHTA v. UNION OF INDIA 59
[DIPAK MISRA, CJI]

B.1 The Reference A
4. When the matter stood thus, learned senior counsel for the
respondent No. 8, MSD Pharmaceuticals Pvt. Ltd., and learned
Additional Solicitor General appearing for the Union of India submitted
that this Court, while exercising the power of judicial review or its
expansive jurisdiction under Article 32 of the Constitution of India dealing B
with public interest litigation, cannot advert to the report of the PSC and
on that basis, exercise the power of issue of a writ in the nature of
mandamus and issue directions. The assistance of learned Attorney
General was also sought keeping in view the gravity of the issue involved.
After hearing the matter, the two-Judge Bench in Kalpana Mehta and
others v. Union of India and others1 thought it appropriate to refer it C
to a Constitution Bench under Article 145(3) of the Constitution and in
that regard, the Division Bench expressed thus:-
“72.The controversy has to be seen from the perspective of judicial
review. The basic principle of judicial review is to ascertain the
propriety of the decision making process on the parameters of D
reasonableness and propriety of the executive decisions. We are
not discussing about the 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 E
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 F
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 G
as a document to augment the stance on the factual score that a
particular activity is unacceptable or erroneous. However, regard
being had to the substantial question of law relating to interpretation
of the Constitution involved, we think it appropriate that the issue
1
(2017) 7 SCC 307 H
60 SUPREME COURT REPORTS [2018] 4 S.C.R.

A be referred to the Constitution Bench under Article 145(3) of the
Constitution.”
5. Thereafter, the two-Judge Bench framed the following questions
for the purpose of reference to the Constitution Bench:-
“73.1. (i) Whether in a litigation filed before this Court either under
B Article 32 or Article 136 of the Constitution of India, the Court
can refer to and place reliance upon the report of the Parliamentary
Standing Committee?
73.2. (ii) Whether such a Report can be looked at for the purpose
of reference and, if so, can there be restrictions for the purpose
C of reference regard being had to the concept of parliamentary
privilege and the delicate balance between the constitutional
institutions that Articles 105, 121 and 122 of the Constitution
conceive?”
Because of the aforesaid reference, the matter has been placed
D before us.
C. Contentions of the petitioners
6. At the very outset, it is essential to state that the argument has
been advanced by the learned counsel appearing for the petitioners that
the lis raised neither relates to parliamentary privileges as set out in
E
Article 105 of the Constitution nor does it pertain to the concept of
separation of powers nor does it require any adjudication relating to the
issue of mandamus for the enforcement of the recommendations of the
PSC report. What is suggested is that the Court should not decide the
controversy as per the facts stated in the report of the PSC treating it to
F be conclusive; rather the Court should take judicial notice of the same as
provided under Section 57(4) of the Evidence Act. It is also urged that
the Court has the jurisdiction under Article 32 of the Constitution to
conduct an independent inquiry being assisted by the Court
Commissioners and also give direction for production of the documents
from the executive. It is put forth in simplest terms that the petitioners
G
are entitled to bring the facts stated in the report to the notice of the
Court and persuade the Court to analyse the said facts and express an
opinion at variance with the report, for the proceedings in the Court are
independent of the PSC report which only has persuasive value.
Emphasising the concept of “judicial notice”, it is propounded that the
H scope of judicial review does not rest on a narrow spectrum and the
KALPANA MEHTA v. UNION OF INDIA 61
[DIPAK MISRA, CJI]

Court under the Constitution is within its rights to draw factual and legal A
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 B
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 C
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 D
been conferred to ensure that the members of Parliament express
themselves freely in Parliament without fear of any impediment of inviting
any civil or criminal proceedings. The initial part of clause (2) of Article
105 confers, inter alia, immunity to the members of Parliament from
civil and criminal proceedings before any court in respect of ‘anything
said’ or ‘any vote given’ by members of Parliament in the Parliament or E
any Committee thereof.
8. It is argued that this being the position, the factual score of the
instant case does not invite the wrath of violation of parliamentary privilege
which Article 105 seeks to protect. It is because the limited issue that
emerges in the present case is to see the Parliamentary Standing F
Committee reports. Thus, looking at the report for arriving at the truth
by the Court in its expansive jurisdiction under Article 32 of the
Constitution remotely touches the concept of privilege under Article 105
of the Constitution. It is further canvassed that the facts that have been
arrived at by the Parliamentary Committee are of immense assistance G
for the adjudication of the controversy in question and in such a situation,
it is crystal clear that the purpose of the petitioners is not to file a civil or
criminal case against any member of the Parliament or any member of
the Standing Committee. Therefore, the violation of parliamentary
privilege does not arise.
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62 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 9. Learned counsel for the petitioners would contend that this
Court is neither called upon to comment expressly or otherwise on the
report nor a writ of mandamus has been sought for enforcement of the
recommendations in the report. It is brought on record so that the Court
can look at the facts stated therein and arrive at a just conclusion in
support of other facts.
B
D. Contentions of the respondents
10. Both the facets of the arguments advanced by the learned
counsel appearing for the petitioners have been seriously opposed by
Mr. K.K. Venugopal, learned Attorney General for India, Mr. Harish N.
C Salve, Mr. Gourab Banerji and Mr. Shyam Divan, learned senior counsel
appearing for the contesting respondents. Their basic propositions are
grounded, first on constitutional provisions which prescribe the privilege
of the Parliament and how the report of a PSC is not amenable to contest
and the limited reliance that has been placed by this Court on the report
of PSC or the speech of a Minister on the floor of the legislature only to
D 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.
E 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
F 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
G both sides in the course of our deliberation. Suffice it to mention, the
fundamental analysis has to be done on the base of the constitutional
provisions, the constitutional values and the precedents. To address the
issue singularly from the prism of Section 57(4) of the Evidence Act, we
are afraid, will tantamount to over simplification of the issue. Therefore,
the said aspect shall be addressed to at the appropriate stage.
H
KALPANA MEHTA v. UNION OF INDIA 63
[DIPAK MISRA, CJI]

E. Supremacy of the Constitution A
13. The Constitution of India is the supreme fundamental law and
all laws have to be in consonance or in accord with the Constitution. The
constitutional provisions postulate the conditions for the functioning of
the legislature and the executive and prescribe that the Supreme Court
is the final interpreter of the Constitution. All statutory laws are required B
to conform to the fundamental law, that is, the Constitution. The
functionaries of the three wings, namely, the legislature, the executive
and the judiciary, as has been stated in His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kerala and another2, derive their
authority and jurisdiction from the Constitution. The Parliament has the
C
exclusive authority to make laws and that is how the supremacy of the
Parliament in the field of legislation is understood. There is a distinction
between parliamentary supremacy in the field of legislation and
constitutional supremacy. The Constitution is the fundamental document
that provides for constitutionalism, constitutional governance and also
sets out morality, norms and values which are inhered in various articles D
and sometimes are decipherable from the constitutional silence. Its
inherent dynamism makes it organic and, therefore, the concept of
“constitutional sovereignty” is sacrosanct. It is extremely sacred and, as
stated earlier, the authorities get their powers from the Constitution. It is
“the source”. Sometimes, the constitutional sovereignty is described as
E
the supremacy of the Constitution.
14. In State of Rajasthan and others v. Union of India and
3
others ,Bhagwati, J. (as his Lordship then was), in his concurring opinion,
stated that the Constitution is suprema lex, the paramount law of the
land and there is no department or branch of government above or beyond
F
it. The learned Judge, proceeding further, observed that every organ of
the government, be it the executive or the legislature or the judiciary,
derives its authority 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 G
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
2
AIR 1973 SC 1461 : (1973) 4 SCC 225
3
(1977) 3 SCC 592
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64 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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.4, speaking for the nine-Judge Bench, held that the supremacy of
the Constitution embodies that constitutional bodies are required to comply
B
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
C
same, the Bench opined that our Constitution was framed by a Constituent
Assembly which was not Parliament. It is in the exercise of law-making
power by the Constituent Assembly that we have a controlled Constitution.
Articles 14, 19 and 21 represent the foundational values which form the
bedrock of the rule of law. These are the principles of constitutionality
D which form the basis of judicial review apart from the rule of law and
separation of powers.
16. Thus, the three wings of the State are bound by the doctrine
of constitutional sovereignty and all are governed by the framework of
the Constitution. The Constitution does not accept transgression of
E constitutional supremacy and that is how the boundary is set.
F. Constitutional limitations upon the legislature
17. The law making power of the Parliament or State legislature
is bound by the concept of constitutional limitation. It is necessary to
appreciate what precisely is meant by constitutional limitation. In State
F of West Bengal v. Anwar Ali Sarkar5, this Court, in the context of
freedom of speech and expression conferred by Article 19(1)(a) of the
Constitution, applied the principle of constitutional limitation and opined
that where a law purports to authorise the imposition of restrictions on a
fundamental right in a language wide enough to cover restrictions both
G within and without the limits of constitutionally permissible legislative
action affecting such right, it is not possible to uphold it even so far as it
may be applied within the constitutional limits, as it is not severable. So
long as the possibility of its being applied for purposes not sanctioned by
4
(2007) 2 SCC 1
5
1952 SCR 284 : AIR 1952 SC 75
H
KALPANA MEHTA v. UNION OF INDIA 65
[DIPAK MISRA, CJI]

the Constitution cannot be ruled out, it must be held to be wholly A
unconstitutional and void. The emphasis was laid on constitutional
limitation. In K.C. Gajapati Narayan Deo v. State of Orissa6, the Court
adverted to the real purpose of legislation and colourable legislation and,
in that context, expressed that when a scrutiny is made, it may appear
that the real purpose of a legislation is different from what appears on
B
the face of it. It would be a colourable legislation only if it is shown that
the real object is different as a consequence of which it lies within the
exclusive field of another legislature.
18. Dwelling upon the legal effect of a constitutional limitation of
legislative power with respect to a law made in derogation of that
limitation, the Court in Deep Chand v. State of Uttar Pradesh and C
others7 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 D
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 E
of the Judicial Committee in Queenv.Burah8 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. F
The Constitution Bench also referred to the observations of the Judicial
Committee in Attorney-General for Ontario v. Attorney-General for
Canada9 which were later on lucidly explained by Mukherjea, J., (as he
then was) in K.C. Gajapati Narayan Deo(supra) to the effect that if
the Constitution distributes the legislative powers amongst different bodies
which have to act within their respective spheres marked out by specific G
legislative entries or if there are limitations on the legislature in the form
6
1954 SCR 1 : AIR 1953 SC 375
7
1959 Supp. (2) SCR 8 : AIR 1959 SC 648
8
(1878) LR 5 I.A. 178
9
(1912) AC 571
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66 SUPREME COURT REPORTS [2018] 4 S.C.R.

A of fundamental rights, the question will arise as to whether, in a particular
case, the legislature has transgressed the limits of its constitutional power
in respect of the subject matter of the statute or in the method of making
it.
19. Recently, in Binoy Viswam v. Union of India and others10
B this Court, while dealing with the exercise of sovereign power of the
Centre and the States in the context of levy of taxes, duties and fees,
observed that the said exercise of power is subject to constitutional
limitation. It is imperative to remember that our Constitution has, with
the avowed purpose, laid down the powers exercised by the three wings
of the State and in exercise of the said power, the authorities are
C constitutionally required to act within their spheres having mutual
institutional respect to realize the constitutional goal and to see that there
is no constitutional transgression. The grammar of constitutional limitation
has to be perceived as the constitutional fulcrum where control operates
among the several power holders, that is, legislature, executive and
D judiciary. It is because the Constitution has created the three organs of
the State.
20. Under the Constitution, the Parliament and the State legislatures
have been entrusted with the power of law making. Needless to say, if
there is a transgression of the constitutional limitation, the law made by
the legislature has to be declared ultra vires by the Constitutional Courts.
E
That power has been conferred on the Courts under the Constitution
and that is why, we have used the terminology “constitutional sovereignty”.
It is an accepted principle that the rule of law constitutes the core of our
Constitution and it is the essence of the rule of law that the exercise of
the power by the State, whether it be the legislature or the executive or
F any other authority, should be within the constitutional limitations.
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
G the State. In Smt. Indira Nehru Gandhi v. Shri Raj Narain and
another11, 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:-
10
(2017) 7 SCC 59
H 11
1975 Supp. SCC 1
KALPANA MEHTA v. UNION OF INDIA 67
[DIPAK MISRA, CJI]

“The Constitution divides the functions of the Union into the three A
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
B
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 separation of powers in its absolute rigidity but the
functions of the different parts or branches of the Government
have been sufficiently differentiated and consequently it can very C
well be said that our Constitution does not contemplate assumption,
by one organ or part of the State, of functions that essentially
belong to another.’ (See: Rai Saheb Ram Jawaya Kapur v. State
of Punjab12). This will no doubt strike one accustomed to the
established supremacy of Parliament in England as unusual. In
D
the course of its historical development Parliament has performed
and in a way still performs judicial functions. Indeed the expression
‘Court of Parliament’ is not unfamiliar to English lawyers.
However, a differentiation of the functions of different departments
is an invariable feature of all written Constitutions. The very
purpose of a written Constitution is the demarcation of the powers E
of different departments of Government so that the exercise of
their powers may be limited to their particular fields. In countries
governed by a written Constitution, as India is, the supreme authority
is not Parliament but the Constitution. Contrasting it with the
supremacy of Parliament, Dicey has characterised it as the
F
supremacy of the Constitution.”
[Emphasis added]
22. The doctrine of separation of powers has become concrete in
the Indian context when the Court in Kesavananda Bharati’s case
treated the same as a basic feature of the Constitution of India. In State G
of Himachal Pradesh v. A Parent of a Student of Medical College,
Simla and others13,this Court ruled that it is entirely a matter for the

12
AIR 1955 SC 549 : (1955) 2 SCR 225
13
(1985) 3 SCC 169
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68 SUPREME COURT REPORTS [2018] 4 S.C.R.

A executive branch of the Government to decide whether or not to introduce
any particular legislation. Of course, any member of the legislature can
also introduce legislation but the Court certainly cannot mandate the
executive or any member of the legislature to initiate legislation,
howsoever necessary or desirable the Court may consider it to be. That
is not a matter which is within the sphere of the functions and duties
B
allocated to the judiciary under the Constitution. The Court further
observed that it cannot usurp the functions assigned to the legislature
under the Constitution and it cannot even indirectly require the executive
to introduce a particular legislation or the legislature to pass it or assume
to itself a supervisory role over the law-making activities of the executive
C and the legislature. In State of Tamil Nadu v. State of Keralaand
another14, 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
D
rule of law.
23. In Bhim Singh v. Union of India and others15, 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
E
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
F democracy. What it prohibits is such exercise of function of the other
branch which results in wresting away of the regime of constitutional
accountability.
24. In Mansukhlal Vithaldas Chauhan v. State of Gujarat16,
Federation of Railway Officers Association and others v. Union of
G India17 and State of Maharashtra and others v. Raghunath Gajanan
Waingankar18, the Court applied the principle of restraint, acknowledging
14
(2014) 12 SCC 696
15
(2010) 5 SCC 538
16
AIR 1997 SC 3400 : (1997) 7 SCC 622
17
(2003) 4 SCC 289 :AIR 2003 SC 1344
18
H AIR 2004 SC 4264
KALPANA MEHTA v. UNION OF INDIA 69
[DIPAK MISRA, CJI]

and respecting the constitutional limitation upon the judiciary to recognize A
the doctrine of separation of powers and restrain itself from entering
into the domain of the legislature. Elaborating further, this Court in
Divisional Manager, Aravali Golf Club and another v. Chander
Hass and another19observed that under our constitutional scheme, the
Legislature, Executive and Judiciary have their own broad spheres of
B
operation and each organ must have respect for the others and must not
encroach into each others’ domain, otherwise the delicate balance in the
Constitution will be upset, and there will be a reaction.
25. In Asif Hameed and others v. State of Jammu and Kashmir
and others20,the Court observed that the Constitution makers have
meticulously defined the functions of various organs of the State. The C
Legislature, Executive and Judiciary have to function within their own
spheres demarcated under the Constitution. It further ruled that the
Constitution trusts the judgment of these organs to function and exercise
their discretion by strictly following the procedure prescribed therein.
The functioning of democracy depends upon the strength and D
independence of each of its organs. The Legislature and the Executive,
the two facets of people’s will, have all the powers including that of
finance. The judiciary has no power over the sword or the purse.
Nonetheless, it has power to ensure that the aforesaid two main organs
of the State function within the constitutional limits. It is the sentinel of
democracy. Judicial review is a powerful weapon to restrain E
unconstitutional exercise of power by the legislature and the executive.
The expanding horizon of judicial review has taken in its fold the concept
of social and economic justice. The exercise of powers by the legislature
and executive is subject to judicial restraint and the only check on the
exercise of power by the judiciary is the self imposed discipline of judicial F
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 G
passage from Alexander Hamilton’s book “The Federalist” and eventually
held:-

19
(2008) 1 SCC 683
20
AIR 1989 SC 1899
H
70 SUPREME COURT REPORTS [2018] 4 S.C.R.

A “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.”
B
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
C of the citizens in certain spheres like environment, sustenance of social
interest, etc. and empowering the populace with the right to information
or right to know in matters relating to candidates contesting election.
There can be many an example where this Court has issued directions
to the executive and also formulated guidelines for facilitation and in
D furtherance of fundamental rights and sometimes for the actualization
and fructification of statutory rights.
H. Power of judicial review
28. While focussing on the exercise of the power of judicial review,
it has to be borne in mind that the source of authority is the Constitution
E of India. The Court has the adjudicating authority to scrutinize the limits
of the power and transgression of such limits. The nature and scope of
judicial review has been succinctly stated in Union of India and another
v. Raghubir Singh (Dead) by LRs. etc.21 by R.S. Pathak, C.J. thus:-
“….. The range of judicial review recognised in the superior
F judiciary of India is perhaps the widest and the most extensive
known to the world of law. … With this impressive expanse of
judicial power, it is only right that the superior courts in India should
be conscious of the enormous responsibility which rest on them.
This is specially true of the Supreme Court, for as the highest
G Court in the entire judicial system the law declared by it is, by
Article 141 of the Constitution, binding on all courts within the
territory of India.
And again:-
21
(1989) 2 SCC 754
H
KALPANA MEHTA v. UNION OF INDIA 71
[DIPAK MISRA, CJI]

“Legal compulsions cannot be limited by existing legal propositions, A
because there will always be, beyond the frontiers of the existing
law, new areas inviting judicial scrutiny and judicial choice-making
which could well affect the validity of existing legal dogma. The
search for solutions responsive to a changed social era involves a
search not only among competing propositions of law, or competing
B
versions of a legal proposition, or the modalities of an indeterminacy
such as ‘fairness’ or ‘reasonableness’, but also among propositions
from outside the ruling law, corresponding to the empirical
knowledge or accepted values of present time and place, relevant
to the dispensing of justice within the new parameters.”
The aforesaid two passages lay immense responsibility on the C
Court pertaining to the exercise of the power keeping in view the accepted
values of the present. An organic instrument requires the Court to draw
strength 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. D
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 E
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 F
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 interpret any law
or any provision of the Constitution as per the limits laid down by the
Constitution. G
31. In S.C. Chandra and others v. State of Jharkhand and
others22, it has been ruled that the judiciary should exercise restraint and
ordinarily should not encroach into the legislative domain. In this regard,
22
(2007) 8 SCC 279
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72 SUPREME COURT REPORTS [2018] 4 S.C.R.

A a reference to a three-Judge Bench decision in Suresh Seth v. Commr.,
Indore Municipal Corpn. and others23 is quite instructive. In the said
case, a prayer was made before this Court to issue directions for
appropriate amendment in the M.P. Municipal Corporation Act, 1956.
Repelling the submission, the Court held that it is purely a matter of
policy which is for the elected representatives of the people to decide
B
and no directions can be issued by the Court in this regard. The Court
further observed that this Court cannot issue directions to the legislature
to make any particular kind of enactment. In this context, the Court held
that under our constitutional scheme, the Parliament and legislative
assemblies exercise sovereign power to enact law and no outside power
C or authority can issue a direction to enact a particular kind of legislation.
While so holding, the Court referred to the decision in Supreme Court
Employees’ Welfare Association v. Union of India and another24
wherein it was held that no court can direct a legislature to enact a
particular law and similarly when an executive authority exercises a
legislative power by way of a subordinate legislation pursuant to the
D
delegated authority of a legislature, such executive authority cannot be
asked to enact a law which it has been empowered to do under the
delegated authority.
32. Recently, in Census Commissioner and others v. R.
Krishnamurthy25, the Court, after referring to Premium Granites and
E another v. State of T.N. and others26, M.P. Oil Extraction and another
v. State of M.P. and others27, State of Madhya Pradesh v. Narmada
Bachao Andolan and another28and State of Punjab and others v.
Ram Lubhaya Bagga and others29, held:-
“From the aforesaid pronouncement of law, it is clear as noon day
F that it is not within the domain of the courts to embark upon an
enquiry as to whether a particular public policy is wise and
acceptable or whether a better policy could be evolved. The court
can only interfere if the policy framed is absolutely capricious or
not informed by reasons or totally arbitrary and founded ipse dixit
G 23
(2005) 13 SCC 287
24
(1989) 4 SCC 187
25
(2015) 2 SCC 796
26
(1994) 2 SCC 691
27
(1997) 7 SCC 592
28
(2011) 7 SCC 639
29
(1998) 4 SCC 117
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KALPANA MEHTA v. UNION OF INDIA 73
[DIPAK MISRA, CJI]

offending the basic requirement of Article 14 of the Constitution. A
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 B
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 C
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. Elucidating
on the said aspect, this Court inVirendra Singh and others v. The D
State of Uttar Pradesh30has observed:-
“32. We have upon us the whole armour of the Constitution and
walk from henceforth in its enlightened ways, wearing the
breastplate of its protecting provisions and flashing the flaming
sword of its inspiration.” E
34. While interpreting fundamental rights, the Constitutional Courts
should remember that whenever an occasion arises, the Courts have to
adopt a liberal approach with the object to infuse lively spirit and vigour
so that the fundamental rights do not suffer. When we say so, it may not
be understood that while interpreting fundamental rights, the Constitutional F
Courts should altogether depart from the doctrine of precedents but it is
the obligation of the Constitutional Courts to act as sentinel onthe qui
viveto ardently guard the fundamental rights of individuals bestowed
upon by the Constitution. The duty of this Court, in this context, has been
aptly described in the case of K.S. Srinivasan v. Union of India31
wherein it was stated:- G
“... All I can see is a man who has been wronged and I can see a
plain way out. I would take it.”
30
AIR 1954 SC 447
31
AIR 1958 SC 419
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74 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 35. Such an approach applies with more zeal in case of
Article 32 of the Constitution which has been described by Dr. B.R.
Ambedkar as “the very soul of the Constitution - the very heart of it -
the most important Article.”Article 32 enjoys special status and, therefore,
it is incumbent upon this Court, in matters under Article 32, to adopt a
progressive attitude. This would be in consonance with the duty of this
B
Court under the Constitution, that is, to secure the inalienable fundamental
rights of individuals.
I.Interpretation of the Constitution – The nature of duty
cast upon this Court
C 36. Having stated about the supremacy of the Constitution and
the principles of constitutional limitation, separation of powers and the
spheres of judicial review, it is necessary to dwell upon the concept of
constitutional interpretation. In S.R. Bommai and others v. Union of
India and others32, it has been said that for maintaining democratic
process and to avoid political friction, it is necessary to direct the political
D parties within the purview of the constitutional umbrella to strongly adhere
to constitutional values. There is no denial of the fact that the judiciary
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
E 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 another
v. Income Tax Officer and another33 has lucidly expressed that our
F 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
G 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 is
specified by the Constitution. Speaking on the duty of the judiciary, the
32
(1994) 3 SCC 1
33
(2011) 4 SCC 36
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KALPANA MEHTA v. UNION OF INDIA 75
[DIPAK MISRA, CJI]

Court has opined that judicial restraint is necessary in dealing with the A
powers of another coordinate branch of the Government; but restraint
cannot imply abdication of the responsibility of walking on that edge.
Stressing on the facet of interpreting any law, including the Constitution,
the Court observed that the text of the provision under consideration
would be the primary source for discerning the meanings that inhere in
B
the enactment. It has also been laid down that in the light of the serious
issues, it would always be prudent, as a matter of constitutional necessity,
to widen the search for the true meaning, purport and ambit of the
provision under consideration. No provision, and indeed no word or
expression, of the Constitution exists in isolation—they are necessarily
related to, transforming and, in turn, being transformed by other provisions, C
words and phrases in the Constitution. Therefore, the Court went on to
say:-
“38. Our Constitution is both long and also an intricate matrix of
meanings, purposes and structures. It is only by locating a particular
constitutional provision under consideration within that D
constitutional matrix could one hope to be able to discern its true
meaning, purport and ambit. As Prof. Laurence Tribe points out:
“[T]o understand the Constitution as a legal text, it is essential
to recognize the … sort of text it is: a constitutive text that
purports, in the name of the people…, to bring into being a E
number of distinct but inter-related institutions and practices,
at once legal and political, and to define the rules governing
those institutions and practices.” (See Reflections on Free-
Form Method in Constitutional Interpretation.34)”
38. The Constitution being an organic document, its ongoing F
interpretation is permissible. The supremacy of the Constitution is
essential to bring social changes in the national polity evolved with the
passage of time. The interpretation of the Constitution is a difficult task.
While doing so, the Constitutional Courts are not only required to take
into consideration their own experience over time, the international treaties
and covenants but also keep the doctrine of flexibility in mind. It has G
been so stated in Union of India v. Naveen Jindal and another35.In
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
34
108 Harv L Rev 1221, 1235 (1995)
35
(2004) 2 SCC 510 H
76 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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
B
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 another v. Union of India
and others36, one of us (Dr. D.Y. Chandrachud, J.) has opined that
C 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
interpretation of the Constitution cannot be frozen by its original
D understanding, for the Constitution has evolved and must continuously
evolve to meet the aspirations and challenges of the present and the
future. The duty of the Constitutional Courts to interpret the Constitution
opened the path for succeeding generations to meet the challenges. Be
it stated, the Court was dealing with privacy as a matter of fundamental
right.
E
40. In Supreme Court Advocates-on-Record Association and
others v. Union of India37, the Court exposited that the Constitution
has not only to be read in the light of contemporary circumstances and
values but also in such a way that the circumstances and values of the
present generation are given expression in its provisions. The Court has
F observed that constitutional interpretation is as much a process of creation
as one of discovery. Thus viewed, the process of interpretation ought to
meet the values and aspirations of the present generation and it has two
facets, namely, process of creation and discovery. It has to be remembered
that while interpreting a constitutional provision, one has to be guided by
G the letter, spirit and purpose of the language employed therein and also
the constitutional silences or abeyances that are discoverable. The scope
and discovery has a connection with the theory of constitutional
implication. Additionally, the interpretative process of a provision of a
36
(2017) 10 SCC 1
37
(1993) 4 SCC 441
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KALPANA MEHTA v. UNION OF INDIA 77
[DIPAK MISRA, CJI]

Constitution is also required to accentuate the purpose and convey the A
message of the Constitution which is intrinsic to the Constitution.
I.1 Interpretation of fundamental rights
41. While adverting to the concept of the duty of the Court, we
shall focus on the interpretative process adopted by this Court in respect
of fundamental rights. In the initial years, after the Constitution came B
into force, the Court viewed each fundamental right as separate and
distinct. That apart, the rule of restrictive interpretation was applied.
The contours were narrow and limited. It is noticeable from the decision
in A.K. Gopalan v. State of Madras38. The perception changed when
the Court focussed on the actual impairment caused by the law rather C
than the literal validity of the law as has been observed in I.R. Coelho
(supra). I.R. Coelho referred to Rustom Cavasjee Cooper v. Union
of India39and understood that the view rendered therein disapproved
the view point in A.K. Gopalanand reflected upon the concept of impact
doctrine in Sakal Papers (P) Ltd. v. Union of India40. The Court,
after referring to Sambhu Nath Sarkar v. State of West Bengal and D
others41, Haradhan Saha v. The State of West Bengal and others42
and Khudiram Das v. State of West Bengal and others43,reproduced
a passage from Maneka Gandhi v. Union of India and another44
which reads thus:-
“The law, must, therefore, now be taken to be well settled that E
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 F
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 situation, exclude Article 19 if both the
rights are breached. G
38
AIR 1950 SC 27 : 1950 SCR 88
39
(1970) 1 SCC 248
40
(1962) 3 SCR 842 : AIR 1962 SC 305
41
(1974) 1 SCR 1 : (1973) 1 SCC 856
42
(1975) 3 SCC 198 : (1975) 1 SCR 778
43
(1975) 2 SCR 832 : (1975) 2 SCC 81
44
(1978) 1 SCC 248 H
78 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 43. In I.R. Coelho (supra), the Court clearly spelt out that post-
Maneka Gandhi, it is clear that the development of fundamental rights
had been such that it no longer involves the interpretation of rights as
isolated protections which directly arise but they collectively form a
comprehensive test against the arbitrary exercise of powers in any area
that occurs as an inevitable consequence. The Court observed that the
B
protection of fundamental rights has been considerably widened. In that
context, reference had been made to M. Nagaraj and others v. Union
of India and others45 wherein it has been held that a fundamental right
becomes fundamental because it has foundational value. That apart,
one has also to see the structure of the article in which the fundamental
C value is incorporated. Fundamental right is a limitation on the power of
the State. A Constitution and, in particular, that of it which protects and
which entrenches fundamental rights and freedoms to which all persons
in the State are to be entitled is to be given a generous and purposive
construction. The Court must interpret the Constitution in a manner which
would enable the citizens to enjoy the rights guaranteed by it in the fullest
D
measure.
I.2 Interpretation of other constitutional provisions
44. In this regard, we may note how the Constitution Benches
have applied the principles of interpretation in relation to other
constitutional provisions which are fundamental to constitutional
E governance and democracy. In B.R. Kapur v. State of T.N. and
another46, while deciding a writ of quo warranto, the majority ruled that
if a non-legislator could be sworn in as the Chief Minister under Article
164 of the Constitution, then he must satisfy the qualification of
membership of a legislator as postulated under Article 173. I.R. Coelho
F (supra), while deciding the doctrine of implied limitation and referring to
various opinions stated in Kesavananda Bharati (supra) and Minerva
Mills Ltd. and others v. Union of India and others47, ruled that the
principle of implied limitation is attracted to the sphere of constitutional
interpretation.
45. In Manoj Narula v. Union of India48, the Court, while
G
interpreting Article 75(1) of the Constitution, opined that reading of implied
limitation to the said provision would tantamount to prohibition or adding
45
(2006) 8 SCC 212
46
(2001) 7 SCC 231
47
(1980) 3 SCC 625
48
(2014) 9 SCC 1
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KALPANA MEHTA v. UNION OF INDIA 79
[DIPAK MISRA, CJI]

a disqualification which is neither expressly stated nor impliedly discernible A
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
B
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. C
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 the text. The concept of legitimate
deduction is always recognised. In Melbourne Corporation v. D
Commonwealth49 , Dixon, J. opined that constitutional implication should
be based on considerations which are compelling. Mason, C.J., in
Australian Capital Television Pty. Limited and others and the State
of New South Wales v. The Commonwealth of Australia and another50
[Political Advertisingcase], has ruled that there can be structural
implications which are “logically or practically necessary for the E
preservation of the integrity of that structure”. Any proposition that is
arrived at taking this route of interpretation must find some resting pillar
or strength on the basis of certain words in the text or the scheme of the
text. In the absence of the same, it may not be permissible for a Court to
deduce any proposition as that would defeat the legitimacy of reasoning. F
A proposition can be established by reading a number of articles
cohesively, for that will be in the domain of substantive legitimacy.
Elaborating further, the Court proceeded to state that the said process
has its own limitation for the Court cannot rewrite a constitutional
provision. To justify the adoption of the said method of interpretation,
there has to be a constitutional foundation. G
47. In Kuldip Nayar and others v. Union of India and others51,
a Constitution Bench, while interpreting Article 80 of the Constitution of
49
[1947] 74 CLR 31 (Aust)
50
[1992] 177 CLR 106 (Aust)
51
(2006) 7 SCC 1 H
80 SUPREME COURT REPORTS [2018] 4 S.C.R.

A India, relied upon a passage from G. Narayanaswami v. G.
Pannerselvam and others52. The said authority clearly lays down that
Courts should interpret in a broad and generous spirit the document which
contains the fundamental law of the land. The Court observed that it
may be desirable to give a broad and generous construction to the
constitutional provisions, but while doing so, the rule of “plain meaning”
B
or “literal” interpretation, which remains “the primary rule”, has also to
be kept in mind. In the context of Article 80(4) of the Constitution in the
context of “the representatives of each State”, the Court repelled the
argument that it is inherent in the expression “representative” that he/
she must first necessarily be an elector in the State. It ruled that the
C “representative” of the State is the person chosen by the electors who
can be any person who, in the opinion of the electors, is fit to represent
them.
48. The Court, in Union of India v. Sankalchand Himatlal Sheth
and another53, ruled that it is to be remembered that when the Court
D 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 States54 that “there is no surer
way to misread a document than to read it literally.” The Court cannot
E 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.
F 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 devil55” and this difficulty is all the greater when the
words to be construed occur in a constitutional provision, for, as pointed
out by Cardozo, J., “the process of constitutional interpretation is in the
G ultimate analysis one of reading values into its clauses.”

52
(1972) 3 SCC 717
53
(1977) 4 SCC 193
54
352 U.S. 128 (1956)
55
R.E. Megarry, ‘A Second Miscellany-at-Law’ (Stevens, London, 1973), p.152
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KALPANA MEHTA v. UNION OF INDIA 81
[DIPAK MISRA, CJI]

49. In this backdrop, it is necessary to state that the Court has an A
enormous responsibility when it functions as the final arbiter of the
interpretation of the constitutional provision.
50. We have discussed the concepts of supremacy of the
Constitution and constitutional limitation, separation of powers, the ambit
and scope of judicial review, judicial restraint, the progressive method B
adopted by the Court while interpreting fundamental rights and the
expansive conception of such inherent rights. We have also deliberated
upon the interpretation of other constitutional provisions that really do
not touch the area of fundamental rights but are fundamental for
constitutional governance and the duty of the Court is not to transgress
the constitutional boundaries. We may immediately add that in the case C
at hand, we are not concerned with the interpretation of such constitutional
provisions which have impact on the fundamental rights of the citizens.
We are concerned with the interpretation of certain provisions that relate
to parliamentary privilege and what is protected by the Constitution in
certain articles. This situation has emerged in the context of the Court’s D
role to rely upon the reports of Parliamentary Standing Committees in
the context of the constitutional provisions contained in Articles 105 and
122.
J. A perspective on the role of Parliamentary Committees
51. It is necessary to understand the role of the parliamentary E
standing Committees or ad hoc committees. They are constituted with
certain purposes. The formation of committee has history. “Committees
have been described as a primary organizational device whereby
legislatures can accommodate an increase in the number of bills being
introduced, while continuing to scrutinize legislation; handle the greater F
complexity and technical nature of bills under review without an
exponential growth in size; develop “division of labours” among members
for considering legislation....”56.
52. Woodrow Wilson, the 28th President of the United States, was
quoted as saying in 1885 that “it is not far from the truth to say that G
Congress in session is Congress on public exhibition, whilst Congress in
its Committee rooms is Congress at work57”. This is because most of
56
Source – Entering the Committee System: State Committee Assignments, Ronald D.
Hedlund, Political; Research Quarterly, Vol. 42, Issue 4, pp.597-625
57
Woodrow Wilson, “Congressional Government”, 1885, quoted in the JCOC Final
Report, (Baltimore, the Johns Hopkins University Press, 1981) p.69
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82 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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:-
B “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
C the proper function of a legislature.58”
54. Lord Campion in his book59 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’
D 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, such as trustee, lessee, nominee,
appointee. The body is usually referred to in the old authorities as
‘committee’. But it was not long before it became usual to describe
E the totality of those to whom a bill was referred as a ‘committee’
in an abstract sense. In both the English word emphasis the idea
of delegation and not that of representation in which the German
word aussehuss expresses.”
55. The utility of a Committee has been succinctly expressed by
F Lord Beaconsfield60:-
“I do not think there is anyone who more values the labour of
parliamentary committees than myself. They obtain for the country
an extraordinary mass of valuable information, which probably
would not otherwise be had or available, and formed, as they
necessarily are, of chosen men their reports are pregnant with
G
58
National Democratic Institute for International Affairs, Parliament’s Orgainzation:
The Role of Committees and Party Whips – NDI Workshop in Mangochi, Malawi,
June 1995 (Washington : National Democratic Institute for International Affairs, 1995)
59
“An Introduction to the Procedure of House of Commons”
60
Lord Beaconsfield in Hansard, 3rd Series, Vol.235 (1877) p. 1478
H
KALPANA MEHTA v. UNION OF INDIA 83
[DIPAK MISRA, CJI]

prudent and sagacious suggestion for the improvements of the A
administration of affairs.”
56. The importance of Committees in today’s democracy has
further been detailed thus61:-
“Committees may not be of much service in the more spectacular
aspect of these democratic institutions, and they might not be of B
much use in shaping fundamental policy, or laying down basic
principles of government. But they are absolutely indispensable
for the detailed work of supervision and control of the
administration. Not infrequently, do they carry out great pieces of
constructive legislation of public economy. Investigation of a C
complicated social problem, prior to legislation, maybe and is
frequently carried out by such legislative committees, the value of
whose service cannot be exaggerated. They are useful for
obtaining expert advice when the problem is a technical one
involving several branches within an organization, or when experts
are required to advise upon a highly technical problem definable D
within narrow limits. The provision of advice based on an inquiry
involving the examination of witnesses is also a task suitable for a
committee. The employment of small committees, chosen from
the members of the House, for dealing with some of the items of
the business of the House is not only convenience but is also in E
accordance with the established convention of Parliament. This
procedure is particularly helpful in dealing with matters which,
because of their special or technical nature, are better considered
in detail by a committee of House. Besides expediting legislative
business, committees serve other useful services. Service on these
committees keeps the members adequately supplied with F
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 G
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.”

61
“Growth of Committee System in the Central Legislature of India 1920-1947”
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84 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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
B 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 legislate. Bills referred to such
committees are thoroughly discussed and drafted before they
C become laws. Example of such committees are the select
committees in the Indian Legislature. Thirdly, committees are
appointed to scrutinize and control. These committees are
entrusted with the task of seeing whether or how a process is
being performed, and by their conduct of this task they serve to
D provide the means of some sort of control over the carrying out of
the process.”
58. Today parliamentary committee systems have emerged as a
creative way of parliaments to perform their basic functions. They serve
as the focal point for legislation and oversight. In a number of parliaments,
E bills, resolutions and matters on specific issues are referred to specific
committees for debate and recommendations are made to the House for
further debate. Parliamentary committees have emerged as vibrant and
central institutions of democratic parliaments of today’s world.
Parliaments across the globe set up their own rules on how committees
are established, the composition, the mandate and how chairpersons are
F to be selected but they do have certain characteristics in common. They
are usually a small group of MPs brought together to critically review
issues related to a particular subject matter or to review a specific bill.
They are often expected to present their observations and
recommendations to the Chamber for final debate.
G 59. Often committees have a multi-party composition. They
examine specific matters of policy or government administration or
performance. Effective committees have developed a degree of expertise
in a given policy area, often through continuing involvement and stable
memberships. This expertise is both recognized and valued by their
H colleagues. They are able to represent diversity as also reconcile enough
KALPANA MEHTA v. UNION OF INDIA 85
[DIPAK MISRA, CJI]

differences to sustain recommendations for action. Also, they are A
important enough so that people inside and outside the legislature seek
to influence outcomes by providing information about what they want
and what they will accept. Furthermore, they provide a means for a
legislative body to consider a wide range of topics in-depth and to identify
politically and technically feasible alternatives.
B
K. International position of Parliamentary Committees
60. Before we proceed to dwell upon the said aspect in the Indian
context, we think it 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 C
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 D
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 E
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 F
with particular areas or issues; most are made up of members of the
Commons.62 The majority of parliamentary committees are Select
Committees which are designed to:-
1. Superintend the work of departments and agencies;
2. Examine topical issues affecting the country or individual G
regions; and
3. Review and advise on the procedures, workings and rules of
the House.
62
See http://www.parliament.uk/business/committees/
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86 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 63. The other committees such as “Departmental Select
Committees” are designed to oversee and examine the work of individual
government departments, “Topical Select Committee” examines
contemporary issues of significance and “Internal Select Committees”
have responsibility with respect to the day-to-day running of Parliament.63
It helps the Parliament to have a very powerful network of committees
B
to ensure executive accountability.
K.2 Parliamentary Committees in United States of America
64. Parliamentary Committees are essential to the effective
operation of the Parliament in United States. Due to the high volume
and complexity of its work, the Senate divides its tasks among 20
C permanent committees, 4 joint committees and occasionally temporary
committees. Although the Senate committee system is similar to that of
the House of Representatives, it has its own guidelines within which
each committee adopts its own rules. This creates considerable variation
among the panels. The chair of each committee and a majority of its
D members represent the majority party. The chair primarily controls a
committee’s business. Each party assigns its own members to
committees, and each committee distributes its members among its sub-
committees.64 The Senate places limits on the number and types of
panels any one senator may serve on and chair. Committees receive
varying levels of operating funds and employ varying numbers of aides.
E Each hires its own staff. The majority party controls most committee
staff and resources, but a portion is shared with the minority.
65. The role and responsibilities of Parliamentary committees in
the United States of America are as follows:-
(i) As “little legislatures,”committees monitor on-going
F governmental operations, identify issues suitable for legislative review,
gather and evaluate information and recommend courses of action to
their parent body.
(ii) The Committee membership enables members to develop
specialized knowledge of the matters under their jurisdiction.
G (iii) Standing committees generally have legislative jurisdiction.
Sub-committees handle specific areas of the committee’s work. Select
and joint committees generally handle oversight or housekeeping
responsibilities.65
63
Id.
64
See https://www.britannica.com/topic/Congress-of-the-United-States for details.
65
H Other types of committees deal with the confirmation or rejection of presidential
KALPANA MEHTA v. UNION OF INDIA 87
[DIPAK MISRA, CJI]

(iv) Several thousand bills and resolutions are referred to A
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 B
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 C
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 its enactment of
bills into law. A committee that considers a measure will manage the full D
Senate’s deliberation on it. Also, its members will be appointed to any
conference committee created to reconcile its version of a bill with the
version passed by the House of Representatives.
K.3 Parliamentary Committees in Canada
67. The Parliament in Canada also functions through various E
standing committees established by Standing Orders of the House of
Commons or the Senate. It studies matters referred to it by special order
or, within its area of responsibility in the Standing Orders, may undertake
studies on its own initiative. There are presently 23 standing committees
(including two standing joint committees) in the House and 20 in the F
Canadian Senate.66 They, in general, examine the administration, policy
developments and budgetary estimates of government departments and
agencies. Certain standing committees are also given mandates to
nominees. Committee hearings that focus on the implementation and investigation of
programs are known as oversight hearings, whereas committee investigations examine
allegations of wrongdoing. G
66
Special committees (sometimes called select committees), e. g., the Special Joint
Committee of the Senate and of the House of Commons on the Constitution of
Canada, are sometimes established by the House to study specific issues or to
investigate public opinion on policy decisions. They are sometimes called task forces
but should not be confused with government TASK FORCES. See http://
www.thecanadianencyclopedia.ca/en/article/committees/
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88 SUPREME COURT REPORTS [2018] 4 S.C.R.

A examine matters that have implications such as official languagespolicy
and multiculturalism policy.
K.4 Parliamentary Committees in Australia
68. The primary object of parliamentary committees in Australia
is to perform functions which the Houses themselves are not well fitted
B to perform, i.e., finding out the facts of a case, examining witnesses,
sifting evidence, and drawing up reasoned conclusions. Because of their
composition and method of procedure, which is structured but generally
informal compared with the Houses, committees are well suited to the
gathering of evidence from expert groups or individuals.67 In a sense,
C they ‘take Parliament to the people’ and allow organisations and individuals
to participate in policy making and to have their views placed on the
public record and considered as part of the decision-making process.
Not only do committee inquiries enable Members to be better informed
about community views but in simply undertaking an inquiry, the committee
may promote public debate on the subject at issue. The all-party
D composition of most committees and their propensity to operate across
party lines are important features.68 This bipartisan approach generally
manifests itself throughout the conduct of inquiries and the drawing up
of conclusions. Committees oversee and scrutinise the Executive and
contribute towards a better-informed administration and government
E policy-making process. 69 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.
F
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
G 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
67
See https://www.aph.gov.au/Parliamentary_Business/Committees
68
Id.
H 69
Id.
KALPANA MEHTA v. UNION OF INDIA 89
[DIPAK MISRA, CJI]

give them a stake in the overall transformation of the country. It was A
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” and usher in a new social
and economic order.
B
70. The founding fathers of the Constitution perceived that
such a system would respond effectively to the problems arising from
our diversity as also to the myriad socio-economic factors that the
nation was faced with. With that objective, in the political system
that we established, prominence was given to the Parliament, the
organ that directly represents the people and as such accountable to C
them.
71. At this juncture, we may look at the origin and working of the
Parliamentary Committee. The committee system in India, as has been
stated in “The Committee System in India : Effectiveness in Enforcing
Executive Accountability”, Hanoi Session, March 2015, is as follows:- D

“The origin of the committee system in India can be traced back
to the Constitutional Reforms of 1919. The Standing Orders of
the Central Legislative Assembly provided for a Committee on
Petitions relating to Bills, Select Committee on Amendments of
Standing Orders, and Select Committee on Bills. There was also E
a provision for a Public Accounts Committee and a Joint Committee
on a Bill. Apart from Committees of the Legislative Assembly,
Members of both Houses of the Central Legislature also served
on the Standing Advisory Committees attached to various
Departments of the Government of India. All these committees F
were purely advisory in character and functioned under the control
of the Government with the Minister in charge of the Department
acting as the Chairman of the Committee.
After the Constitution came into force, the position of the Central
Legislative Assembly changed altogether and the committee G
system underwent transformation. Not only did the number of
committees increase, but their functions and powers were also
enlarged.
By their nature, Parliamentary Committees are of two kinds:
Standing Committees and Ad hoc Committees. Standing
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90 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Committees are permanent and regular committees which are
constituted from time to time in pursuance of the provisions of an
Act of Parliament or Rules of Procedure and Conduct of Business
in Lok Sabha. The work of these Committees is of continuous
nature. The Financial Committees, Departmentally Related
Standing Committees (DRSCs) and some other Committees come
B
under the category of Standing Committees. Ad hoc Committees
are appointed for a specific purpose and they cease to exist when
they finish 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
C 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
D 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),
E 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.”

F 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 disposal is limited. It cannot, therefore, give close consideration
to all the legislative and other matters that come up before it. A good
deal of its business is, therefore, transacted in the Committees of the
House known as Parliamentary Committees. Parliamentary Committee
G 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.
74. Founded on English traditions, the Indian Parliament’s
committee system has a vital role in the parliamentary democracy.
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KALPANA MEHTA v. UNION OF INDIA 91
[DIPAK MISRA, CJI]

Generally speaking, the Parliamentary committees are of two kinds; A
standing committees and ad hoc committees. Standing Committees
are permanent and regular committees which are constituted from time
to time in pursuance of the provisions of an Act of Parliament or Rules
of Procedure and Conduct of Business in Lok Sabha. The work of these
Committees is of continuous nature. The Financial Committees,
B
Department Related Standing Committees (DRSCs) and some other
Committees too come under the category of Standing Committees. The
ad hoc Committees are appointed for specific purposes as and when the
need arises and they cease to exist as soon as they complete the work
assigned to them.70 The parliamentary committees are invariably larger
in size and are recommendatory in nature. Be it stated, there are 24 C
Department Related Standing Committees covering under their jurisdiction
all the Ministries/Departments of the Government of India. Each of these
Committees consists of 31 Members - 21 from Lok Sabha and 10 from
Rajya Sabha to be nominated by the Speaker, Lok Sabha and the
Chairman, Rajya Sabha, respectively. The term of office of these
D
Committees does not exceed one year.
L.1 Rules of Procedure and Conduct of Business in Lok
Sabha
75. A close look at the functioning of these committees discloses
the fact that the committee system is designed to enlighten Members E
of Parliament (MPs) on the whole range of governmental action
including defence, external affairs, industry and commerce,
agriculture, health and finance. They offer opportunities to the members
of the Parliament to realize and comprehend the dynamics of democracy.
The members of Parliament receive information about parliamentary
workings as well as perspective on India’s strengths and weaknesses F
through 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 G
to enhance the capabilities of Members of Parliament to shoulder
greater responsibilities and broaden their horizons.
70
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.
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92 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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:-
B “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.”
C 77. From the referral judgment, we may reproduce the following
paragraphs dealing with the relevant Rules:-
“33. Chapter 26 of the Rules deals with Parliamentary Committees
and the matters regarding appointment, quorum, decisions of the
committee, etc. There are two kinds of Parliamentary Committees:
D (i) Standing Committees, and (ii) Ad hoc Committees. The Standing
Committees are categorised by their nature of functions. The
Standing Committees of the Lok Sabha are as follows:
(a) Financial Committees;
(b) Subject Committees or departmentally related Standing
E Committees of the two houses;
(c) Houses Committee i.e. the committees relating to the day to
day business of the House;
(d) Enquiry Committee;
F (e) Scrutiny Committees;
(f) Service Committees;
34. A list of Standing Committees of Lok Sabha along with its
membership is reproduced as under:
Name of Committee Number of Members
G
Business Advis ory Committee 15
Committee of Privileges 15
Committee on Absence of Members 15
from the Sittings of the House of
Committee on Empowerment of
H Women
KALPANA MEHTA v. UNION OF INDIA 93
[DIPAK MISRA, CJI]

A
Committee on Estimates 30
Committee on Government 15
Assurances
Committee on Papers Laid on the 15
Table
Committee on Petitions 15 B
Committee on Private Members Bills 15
and Resolutions
Committee on Public Accounts 22
Committee on Public Undertakings 22
Committee on Subordinate 15
Legislation C
Committee on the Welfare of 30
Scheduled Castes and Scheduled
Tribes
House Committee 12
Joint Committee on Offices of Profit 15
D
Joint Committee on Salaries and 15
Allowances of Members of
Parliament
Library Committee 9
Rules Committee 15
E
Apart from the above, there are various departmentally related
Standing Committees under various Ministries.”
78. Rules 77 and 78 of the Rules read as under:-
“77. (1) After the presentation of the final report of a Select
Committee of the House or a Joint Committee of the Houses, as F
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
mbers taken into consideration; or
G
(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 re-
committed 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—
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94 SUPREME COURT REPORTS [2018] 4 S.C.R.

A (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
B (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
C 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 objection shall prevail, unless the Speaker allows
the motion to be made.
(2) If the member in charge moves that the Bill as reported by the
D Select Committee of the House or the Joint Committee of the
Houses, as the case may be, be taken into consideration, any
member may move Motions after presentation of Select/ Joint
Committee reports. 39 as an amendment that the Bill be re-
committed or be circulated or recirculated for the purpose of
eliciting opinion or further opinion thereon.
E
78. The debate on a motion 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 shall be confined
to consideration of the report of the Committee and the matters
referred to in that report or any alternative suggestions consistent
F with the principle of the Bill.”
79. Rule 270 of the Rules, which deals with the functions of the
Parliamentary Committee meant for Committees of the Rajya Sabha, is
relevant. It reads as follows:-
“270. Functions.— Each of the Standing Committees shall have
G the following functions, namely—
(a) to consider the Demands for Grants of the related Ministries/
Departments and report thereon. The report shall not suggest
anything of the nature of cut motions;

H
KALPANA MEHTA v. UNION OF INDIA 95
[DIPAK MISRA, CJI]

(b) to examine Bills, pertaining to the related Ministries/ A
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 B
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.” C

80. Rule 271 provides for the applicability of provisions relating to
functions. Rule 274 deals with the report of the Committee. The said
Rule reads as follows:-
“274. Report of the Committee.— (1) The report of the Standing D
Committee shall be based on broad consensus.
(2) Any member of the Committee may record a minute of dissent
on the report of the Committee.
(3) The report of the Committee, together with the minutes of
dissent, if any, shall be presented to the Houses.” E
81. Rule 274(3) is extremely significant, 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 F
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. G

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
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96 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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
inErskine May’s Treatise on the Law, Privileges, Proceedings and Usage
B of Parliament:-
“Parliamentary privilege is the sum of the peculiar rights enjoyed
by each House collectively... 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.
C Thus privilege, though part of the law of the land, is to a certain
extent an exemption from the general law.”71
84. The concept of Parliamentary Privilege has its origin in
Westminster, Britain in the 17th century with the passage of the Bill of
Rights in 1689. Article IX of the Bill of Rights, which laid down the
D concept of Parliamentary Privilege, reads as under:-
“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.”
85. Parliamentary Privilege was introduced to prevent any undue
E interference in the working of the Parliament and thereby enable the
members of the Parliament to function effectively and efficiently without
unreasonable impediment. Till date, Parliamentary Privilege remains an
important feature in any parliamentary democracy. The concept of
Parliamentary Privilege requires a balancing act of two opposite
F arguments as noted by Thomas Erskine May:-
“On the one hand, the privileges of Parliament are rights
‘absolutely necessary for the due execution of its powers’; and
on the other, the privilege of Parliament granted in regard of public
service ‘must not be used for the danger of the commonwealth.”72
G M.1 Parliamentary privilege under the Indian Constitution
86. Having dealt with the role of the Parliamentary Standing
Committee or Parliamentary Committees, it is necessary to understand
71
May, 22 nd ed., p. 65. For other definitions of privilege, see Maingot, 2nd ed., pp. 12-3.
72
Erskine May 24th Edition Pg. 209
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KALPANA MEHTA v. UNION OF INDIA 97
[DIPAK MISRA, CJI]

the status of Parliamentary Committee and the privileges it enjoys in the A
Indian context. Article 105 of the Constitution of India, being relevant in
this context, is reproduced below:-
“Article 105.Powers, privileges, etc of the Houses of
Parliament and of the members and committees thereof
(1) Subject to the provisions of this constitution and the rules and B
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 C
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 D
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 E
(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.” F
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
G
Article 19(1)(a) of the Constitution. Members of the Parliament enjoy
full freedom in respect of what they speak inside the House. Article
105(4) categorically stipulates that 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
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98 SUPREME COURT REPORTS [2018] 4 S.C.R.

A of, a House of the Parliament or any committee thereof as they apply in
relation to the members of the Parliament. Thus, there is complete
constitutional protection. It is worthy to note that Article 118 provides
that each House of the Parliament may make rules for regulating, subject
to the provisions of this Constitution, its procedure and the conduct of its
business. Condignly analysed, the Parliament has been enabled by the
B
Constitution to regulate its procedure apart from what has been stated
directly in the Constitution.
88. Article 105 of the Constitution is read mutatis mutandis with
Article 194 of the Constitution as the language in both the articles is
identical, except that Article 105 employs the word “Parliament” whereas
C Article 194 uses the words “Legislature of a State”. Therefore, the
interpretation of one of these articles would invariably apply to the other
and vice versa.
89. In U.P. Assembly case [Special Reference No. 1 of 1964]73,
the controversy pertained to the privileges of the House in relation to the
D fundamental rights of the citizens. The decision expressly started that
the Court was not dealing with the internal proceedings of the House.
We may profitably reproduce two passages from the said judgment:-
“108. … The obvious answer to this contention is that we are not
dealing with any matter relating to the internal management of
E the House in the present proceedings. We are dealing with the
power of the House to punish citizens for contempt alleged to
have been committed by them outside, the four walls of the House,
and that essentially raises different considerations.
x x x x x
F
141. In conclusion, we ought to add that throughout our discussion
we have consistently attempted to make it clear that the main
point which we are discussing is the right of the House to claim
that a general warrant issued by it in respect of its contempt alleged
to have been committed by a citizen who is not a Member of the
G House outside the four walls of the House, is conclusive, for it is
on that claim 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. …”
73
H AIR 1965 SC 745
KALPANA MEHTA v. UNION OF INDIA 99
[DIPAK MISRA, CJI]

90. The Court further observed:- A
“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 B
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 C
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 this clause, it is necessary to emphasis D
that the provisions of the Constitution subject to which freedom
of speech has been conferred on the legislators, are not the general
provisions of the Constitution but only such of them as relate to
the regulation of the procedure of the Legislature. The rules and
standing orders may regulate the procedure of the Legislature
and some of the provisions of the Constitution may also purport to E
regulate it; these are, for instance, Articles 208 and 211. The
adjectival clause “regulating the procedure of the Legislature”
governs both the preceding clauses relating to “the provisions of
the Constitution” and “the rules and standing orders.” Therefore,
clause (1) confers on the legislators specifically the right of freedom F
of speech subject to the limitation prescribed by its first part. It
would thus appear that by making this clause subject only to the
specified provisions of the Constitution, the Constitution-makers
wanted to make it clear that they thought it necessary to confer
on the legislators freedom of speech separately and, in a sense,
independently of Art. 19(1)(a). If all that the legislators were entitled G
to claim was the freedom of speech and expression enshrined in
Art. 19(1)(a), it would have been unnecessary to confer the same
right specifically in the manner adopted by Art. 194(1); and so, it
would be legitimate to conclude that Art. 19(1)(a) is not one of
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100 SUPREME COURT REPORTS [2018] 4 S.C.R.

A the provisions of the Constitution which controls the first part of
clause (1) of Art. 194.”
Proceeding further, the Court went on to say that clause (2)
emphasises the fact that the said freedom is intended to be absolute and
unfettered. Similar freedom is guaranteed to the legislators in respect of
B the votes they may give in the Legislature or any committee thereof.
Interpreting clause (3), the Court ruled that the first part of this clause
empowers the Legislatures of the States to make laws prescribing their
powers, privileges and immunities; the latter part provides that until such
laws are made, the Legislatures in question shall enjoy the same powers,
privileges and immunities which the House of Commons enjoyed at the
C commencement of the Constitution. The Constitution-makers, the Court
observed, must have thought that the Legislatures would take some time
to make laws in respect of their powers, privileges and immunities. During
the interval, it was clearly necessary to confer on them the necessary
powers, privileges and immunities. There can be little doubt that the
D 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
E 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
F 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. …”
G 92. Dealing with the plenary powers of the legislature, the Court
ruled that 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
H
KALPANA MEHTA v. UNION OF INDIA 101
[DIPAK MISRA, CJI]

exercise their plenary legislative authority and discharge their legislative A
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
B
fields assigned to them, or while 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 the Courts in
India. Therefore, it is necessary to remember that though our Legislatures
have plenary powers, yet they function within the limits prescribed by C
the material and relevant provisions of the Constitution.
93. Adverting to Article 212(1) of the Constitution, the Court held
that the said Article seems to make it possible for a citizen to call in
question in the appropriate court of law the validity of any proceedings
inside the legislative chamber if his case is that the said proceedings D
suffer not from mere irregularity of procedure, but from an illegality. If
the impugned procedure is illegal and unconstitutional, it would be open
to be scrutinised in a court of law, though such scrutiny is prohibited if
the complaint against the procedure is no more than this that the procedure
was irregular. That again is another indication which may afford some
assistance in construing the scope and extent of the powers conferred E
on the House by Article 194(3).
94. In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and
others74, the Court, after referring to U.P. Assembly case (Special
Reference No. 1 of 1964), observed that the privileges of the Parliament
are rights which are “absolutely necessary for the due execution of its F
powers” which are enjoyed by individual members as the House would
not be able 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 G
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.
74
(2007) 3 SCC 184
H
102 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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 Fayed75 pointed out that
the normal impact of parliamentary privilege is to prevent the Court
B 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.
C Duke of Beaufort76, has opined that it is incumbent upon the Courts of
law to defend their high and sacred duty of guarding themselves, the
liberties and the properties of the subject, and protecting the respectability
and the very existence of the Houses of Parliament themselves, against
wild and extravagant and groundless and inconsistent notions of privilege.
D 97. The 1999 UK Joint Committee report offers a useful analysis
of the respective roles to be played by the Parliament and the Courts in
advancing the law of parliamentary privilege:-
“There may be good sense sometimes in leaving well alone when
problems have not arisen in practice. Seeking to clarify and define
E boundaries may stir up disputes where currently none exists. But
Parliament is not always well advised to adopt a passive stance.
There is merit, in the particularly important areas of parliamentary
privilege, in making the boundaries reasonably clear before
difficulties arise. Nowadays people are increasingly vigorous in
their efforts to obtain redress for perceived wrongs. In their court
F cases they press expansively in areas where the limits of the courts’
jurisdiction are not clear. Faced with demarcation problems in this
jurisdictional no-man’s land, the judges perforce must determine
the position of the boundary. If Parliament does not act, the courts
may find themselves compelled to do so.”
G 98. With respect to the position of parliamentary privileges and
the role of the Courts in Canada, the Supreme Court of Canada in the
case of New Brunswick Broadcasting Co. v. Nova Scotia (Speaker
of the House of Assembly)77 opined that the Canadian legislative bodies
75
[2001] 1 AC 395 at 407
76
[1831] Eng R 809 : (1831) 2 Russ & My 639: (1831) 39 ER 538
H 77
[1993] 1 SCR 319
KALPANA MEHTA v. UNION OF INDIA 103
[DIPAK MISRA, CJI]

possess such inherent privileges as may be necessary to their proper A
functioning and that the said privileges are part of the fundamental law
of the land and are, hence, constitutional. Further, the Court observed
that the Courts have the power to determine if the privilege claimed is
necessary to the capacity of the legislature to function, but have no
power to review the correctness of a particular decision made pursuant
B
to the privilege. In the case of Harvey v. New Brunswick (Attorney
General)78, the Court has held that in order to prevent abuses in the
guise of privilege from trumping legitimate Charter interests, the Courts
must inquire into the legitimacy of a claim of parliamentary privilege.
99. With respect to the review of parliamentary privilege, Lord
Coleridge, C.J., in the case of Bradlaugh v. Gossett79, observed that C
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 D
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 book80 has also made the
following observations with regard to review of Parliamentary privileges:- E
‘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 F
land its meaning and extent must be interpreted by the courts, just
like any other part of the law; and therefore, neither House can
add to its privileges by its own resolution, any more than it can
add to any other part of the law by such a resolution.
On the other hand if it is true that each House is the sole judge of G
its own privileges, it might seem that each House was the sole
judge as to whether or no it had got a privilege, and so could add
to its privileges by its own resolution. This apparent contradiction
78
[1996] 2 SCR 876
79
(1884) 12 QBD 271 (D)
80
“A History of English Law” H
104 SUPREME COURT REPORTS [2018] 4 S.C.R.

A is solved if the proper application of these two maxims is attended
to. The first maxim applies to cases like Ashby v. White and
Stockdale v. Hansard (A), in which the question al issue was the
existence of a privilege claimed by the House.
This is a matter of law which the courts must decide, without
B paying any attention to a resolution of the House on the subject.
The second maxim applies to cases like that of the Sheriff of
Middlesex (B), and Bradlaugh v. Gosset (D), in which an attempt
was made to question, not the existence but the mode of user of
an undoubted privilege. On this matter the courts will not interfere
because each House is the sole judge of the question whether,
C when or how it will use one of its undoubted privileges.”
101. At this juncture, it is fruitful to refer to Articles 121 and 122
of the Constitution. They read as follows:-
“121. Restriction on discussion in Parliament: No discussions
D shall take place in Parliament with respect to the conduct of any
Judge of the Supreme Court or of a High Court in the discharge
of his duties expect upon a motion for presenting an address to
the President praying for the removal of the Judge as hereinafter
provided.

E 122. Courts not to inquire into proceedings of Parliament:-
(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
F 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.”
102. As we perceive, the aforesaid Articles are extremely
significant as they are really meant to state the restrictions imposed by
G the Constitution on both the institutions.
103. 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
H
KALPANA MEHTA v. UNION OF INDIA 105
[DIPAK MISRA, CJI]

the power to issue unspeaking warrants immune from the review A
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),
B
“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.”
(Emphasis supplied) C
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 D
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 sometimes affect it adversely. Wise Judges
never forget that the best way to sustain the dignity and status of
their office is to deserve respect from the public at large by the E
quality of their judgments, the fearlessness, fairness and objectivity
of their approach, and by the restraint, dignity 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.”
F
And again:-
“269. It is evident, therefore, that in the opinion of the Court in
U.P. Assembly case (Special Reference No. 1 of 1964),
legislatures in India do enjoy the power to punish for contempt. It
is equally clear that while the fact that the House of Commons
G
enjoyed the power to issue unspeaking warrants in its capacity of
a court of record was one concern, what actually worried the
Court was not the source of the power per se, but the “judicial”
nature of power to issue unspeaking warrant insofar as it was
directly in conflict with the scheme of the Constitution whereby
H
106 SUPREME COURT REPORTS [2018] 4 S.C.R.

A citizens were guaranteed fundamental rights and the power to
enforce the fundamental rights is vested in the courts. It was not
the power to punish for contempt about which the Court had
reservations. Rather, the abovequoted passage shows that such
power had been accepted by the Court. The issue decided
concerned the non-reviewability of the warrant issued by the
B
legislature, in the light of various constitutional provisions.”
104. After referring to various other decisions, the Court
summarized the principles relating to the parameters of judicial review
in relation to exercise of parliamentary provisions. Some of the
conclusions being relevant for the present purpose are reproduced below:-
C
“(a) Parliament is a coordinate organ and its views do deserve
deference even while its acts are amenable to judicial scrutiny;
(b) The constitutional system of government abhors absolutism
and it being the cardinal principle of our Constitution that no one,
D howsoever lofty, can claim to be the sole judge of the power given
under the Constitution, mere coordinate constitutional status, or
even the status of an exalted constitutional functionaries, does not
disentitle this Court from exercising its jurisdiction of judicial review
of actions which partake the character of judicial or quasi-judicial
decision;
E
(c) The expediency and necessity of exercise 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
F 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
G 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
H
KALPANA MEHTA v. UNION OF INDIA 107
[DIPAK MISRA, CJI]

administrative action would be tested, and the Court would confine A
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 B
of the action of the legislature trespassing on the fundamental
rights conferred on the citizens;
(i) The broad contention that the exercise of privileges by
legislatures cannot be decided against the touchstone of
fundamental rights or the constitutional provisions is not correct; C
(j) If a citizen, whether a non-Member or a Member of the
legislature, complains that his fundamental rights under Article 20
or 21 had been contravened, it is the duty of this Court to examine
the merits of the said contention, especially when the impugned
action entails civil consequences; D
(k) There is no basis to the claim of bar of exclusive cognizance
or absolute immunity to the parliamentary proceedings in Article
105(3) of the Constitution;
(l) The manner of enforcement of privilege by the legislature can
result in judicial scrutiny, though subject to the restrictions contained E
in the other constitutional provisions, for example Article 122 or
212;
(m) Article 122(1) and Article 212(1) displace the broad doctrine
of exclusive cognizance of the legislature in England of exclusive
cognizance of internal proceedings of the House rendering F
irrelevant the case-law that emanated from courts in that
jurisdiction; inasmuch as the same has no application to the system
of governance provided by the Constitution of India;
(n) Article 122(1) and Article 212(1) prohibit the validity of any
proceedings in legislature from being called in question in a court G
merely on the ground of irregularity of procedure;
x x x x
(r) Mere availability of the Rules of Procedure and Conduct of
Business, as made by the legislature in exercise of enabling powers
H
108 SUPREME COURT REPORTS [2018] 4 S.C.R.

A under the Constitution, is never a guarantee that they have been
duly followed;
(s) The proceedings which may be tainted on account of
substantive or gross illegality or unconstitutionality are not protected
from judicial scrutiny;
B (t) Even if some of the material on which the action is taken is
found to be irrelevant, the court would still not interfere so long as
there is some relevant material sustaining the action;
(u) An ouster clause attaching finality to a determination does
ordinarily oust the power of the court to review the decision but
C not on grounds of lack of jurisdiction or it being a nullity for some
reason such as gross illegality, irrationality, violation of constitutional
mandate, mala fides, non-compliance with rules of natural justice
and perversity.”
[Emphasis supplied]
D
105. 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)
E 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
F 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
G
reports of parliamentary committees have various facets, namely,
statement of fact made to the committee, statement of policy made to
the committee, statements of fact made by Members of Parliament in
Parliament and inference drawn from facts and findings of fact and law
and, therefore, the Court is required to pose the question as to which of
H
KALPANA MEHTA v. UNION OF INDIA 109
[DIPAK MISRA, CJI]

the above aspects of the Parliamentary Committee Reports can be placed A
reliance upon. The contention is structured on the foundation that
committee reports are admissible in evidence and in public interest
litigation in exercise of power under Article 32 for interpreting the
legislation and directing the implementation of constitutional or statutory
obligation by the executive.
B
N. Reliance on parliamentary proceedings as external aids
107. A Constitution Bench in R.S. Nayak v. A.R. Antulay81, after
referring to various decisions of this Court and development in the law,
opined 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. The C
Constitution Bench further observed that the basic purpose of all canons
of the Constitution is to ascertain with reasonable certainty the intention
of the Parliament and for the said purpose, external aids such as reports
of special committee preceding the enactment, the existing state of law,
the environment necessitating enactment of a legislation and the object
sought to be achieved, etc. which the Parliament held the luxury of D
availing should not be denied to the Court whose primary function is to
give effect to the real intention of the legislature in enacting a statute.
The Court was of the view that such a denial would deprive the Court of
a substantial and illuminating aid to construction and, therefore, the Court
decided to depart from the earlier decisions and held that reports of E
committees which preceded the enactment of a law, reports of Joint
Parliamentary Committees and a report of a commission set up for
collecting information can be referred to as external aids of construction.
108. In this regard, we may also usefully state that the speeches
of Ministers in Parliament are referred to on certain occasions for limited F
purposes. A Constitution Bench in State of West Bengal v. Union of
India82 has opined that it is, however, well settled that the Statement of
Objects and Reasons accompanying a Bill, when introduced in
Parliament, cannot 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 G
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
81
(1984) 2 SCC 183
82
AIR 1963 SC 1241 H
110 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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.
B
109. In K.P. Varghese v. Income Tax Officer, Ernakulam and
another83, 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.
C But the Court made it clear that the speech made by the mover of the
Bill explaining the reasons for introducing the Bill can certainly be referred
to for ascertaining the mischief sought to be remedied and the object
and the purpose of the legislation in question. Such a view, as per the
Court, was in consonance with the juristic thought not only in the western
D countries but also in India as in the exercise of interpretation of a statute,
everything which is logically relevant should be admitted. Thereafter,
the Court acknowledged a few decisions of this Court where speeches
made by the Finance Minister were relied upon by the Court for the
purpose of ascertaining the reason for introducing a particular clause.
Similar references have also been made in Dr. Ramesh Yeshwant
E Prabhoo v. Prabhakar Kashinath Kunte and others84. That apart,
parliamentary debates have also been referred to appreciate the context
relating to the construction of a statute in Novartis AG v. Union of
India and others 85, State of Madhya Pradesh and another v.
Dadabhoy’s New Chirimiri Ponri Hill Colliery Co. Pvt. Ltd.86, Union
F of India v. Steel Stock Holders Syndicate, Poona87, K.P. Varghese
(supra), and Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income
Tax and others88.
110. In Ashoka Kumar Thakur v. Union of India and others 89,
this Court, after referring to Crawford on Statutory Construction,
G 83
(1981) 4 SCC 173
84
(1996) 1 SCC 130
85
(2013) 6 SCC 1
86
(1972) 1 SCC 298
87
(1976) 3 SCC 108
88
(1999) 4 SCC 306
89
(2008) 6 SCC 1
H
KALPANA MEHTA v. UNION OF INDIA 111
[DIPAK MISRA, CJI]

observed that the Rule of Exclusion followed in the British Courts has A
been criticized by jurists as artificial and there is a strong case for whittling
down the said rule. The Court was of the view that the trend of academic
opinion and practice in the European system suggests that the
interpretation of a statute being an exercise in the ascertainment of
meaning, everything which is logically relevant should be admissible which
B
implies that although such extrinsic materials shall not be decisive, yet
they should at least be admissible. Further, the Court took note of the
fact that there is authority to suggest that resort should be had to these
extrinsic materials only in case of incongruities and ambiguities. Where
the meaning of the words in a statute is plain, then the language prevails,
but in case of obscurity or lack of harmony with other provisions and in C
other special circumstances, it may be legitimate to take external
assistance to determine 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. D
Surat Art Silk Cloth Manufacturers’ Association, Surat90, 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 E
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 F
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. G
113. In Pepper v. Hart91, Lord Browne-Wilkinson, delivering the
main speech, set out the test as follows:-
90
(1980) 2 SCC 31
91
[1992] UKHL 3 : [1993] AC 593 : [1992] 3 WLR 1032
H
112 SUPREME COURT REPORTS [2018] 4 S.C.R.

A “I therefore reach the conclusion, subject to any question of
Parliamentary privilege, that the exclusionary rule should be relaxed
so as to permit reference to Parliamentary materials where (a)
legislation is ambiguous or obscure, or leads to an absurdity; (b)
the material relied upon consists of one or more statements by a
Minister or other promoter of the Bill together if necessary with
B
such other Parliamentary material as is necessary to understand
such statements and their effect; (c) the statements relied upon
are clear.”
114. The Supreme Court of Canada in R. v. Vasil92relied on
parliamentary materials to interpret the phrase “unlawful object” in Section
C 212(c) of the Canadian Criminal Code. Speaking for the majority, Justice
Lamer (as he then was) said:-
“Reference to Hansard is not usually advisable. However, as
Canada has, at the time of codification, subject to few changes,
adopted the English Draft Code of 1878, it is relevant to know
D whether Canada did so in relation to the various sections for the
reasons advanced by the English Commissioners or for reasons
of its own.
Indeed, a reading of Sir John Thompson’s comments in Hansard
of April 12, 1892, (House of Commons Debates, Dominion of
E Canada, Session 1892, vol. I, at pp. 1378-85) very clearly confirms
that all that relates to murder was taken directly from the English
Draft Code of 1878. Sir John Thompson explained the proposed
murder sections by frequently quoting verbatim the reasons given
by the Royal Commissioners in Great Britain, and it is evident that
F Canada adopted not only the British Commissioners’ proposed
sections but also their reasons.”
The Canadian authorities, as is noticeable from Re Anti-Inflation
Act (Canada)93, have relaxed the exclusionary rule.
115. In Dharam Dutt and others v. Union of India and others94,
G the Court took note of the three Parliamentary Standing Committees
appointed at different points of time which had recommended the taking
over of Sapru House on the ground of declining standard of the Institution.
92
[1981] 1 SCR 469, 121 D.L.R. (3d) 41
93
[1976] 2 SCR 373, 68 D.L.R. (3d) 452
94
H (2004) 1 SCC 712
KALPANA MEHTA v. UNION OF INDIA 113
[DIPAK MISRA, CJI]

Further, this Court took note that it had already pointed out in an earlier A
part 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.
B
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 C
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 D
their own political party. In this context, the Court took note of the
recommendations of the Committee Report while testing the vires of
the impugned amendment.
117. From the aforesaid, it clear as day that the Court can take
aid of the report of the parliamentary committee for the purpose of E
appreciating the historical background of the statutory provisions and it
can also refer to committee report or the speech of the Minister on the
floor of the House of the Parliament if there is any kind of ambiguity or
incongruity in a provision of an enactment. Further, it is quite vivid on
what occasions and situations the Parliamentary Standing Committee
Reports or the reports of other Parliamentary Committees can be taken F
note of by the Court and for what purpose. Relying on the same for the
purpose of interpreting the meaning of the statutory provision where it is
ambiguous and unclear or, for that matter, to appreciate the background
of the enacted law is quite different from referring to it for the purpose
of arriving at a factual finding. That may invite a contest, a challenge, a G
dispute and, if a contest arises, the Court, in such circumstances, will be
called upon to rule on the same.
118. In the case at hand, what is urged by the learned counsel for
the petitioners is that though no interpretation is involved, yet they can
refer to the report of the Parliamentary Standing Committee to establish H
114 SUPREME COURT REPORTS [2018] 4 S.C.R.

A a fact which they have pleaded and asserted in the writ petition.
According to them, the committees are constituted to make the executive
accountable and when the public interest litigation is preferred to
safeguard the public interest, the report assumes great significance and
it is extremely necessary to refer to the same to arrive at the truth of the
controversy. In such a situation, they would contend that the question of
B
aid does not relate to any kind of parliamentary privilege. It is the stand
of the petitioners that they do not intend to seek liberty from the Parliament
or the Parliamentary Committee to be questioned or cross examined. In
fact, reliance of the report has nothing to do with what is protected by
the Constitution under Article 105. The court proceedings are independent
C of the Parliament and based on multiple inputs, materials and evidence
and in such a situation, the parties are at liberty to persuade the Court to
come to a determination of facts and form an opinion in law at variance
with the parliamentary committee report. The learned counsel for the
petitioners would further submit that advancing submissions relying on
the report would not come within the scope of parliamentary privilege.
D
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
E 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:
F

x x x x x x x x
x x x x x x x x
x x x x x x x x
G
(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;”

H
KALPANA MEHTA v. UNION OF INDIA 115
[DIPAK MISRA, CJI]

121. Section 57 is a part of Chapter III of the Evidence Act which A
deals with “Facts which need not be proved”. Section 57 rests on the
assumption that the facts scripted in the thirteen sub-sections are relevant
under any one or more Sections of Chapter II which deals with “relevancy
of facts”. Thus, Section 57, by employing the words “shall”, casts an
obligation upon the Courts to take judicial notice of the said facts. Section
B
57, sub-section (4) of the Evidence Act casts an obligation on the Courts
to take judicial notice of the course of proceedings of Parliament.
122. This Court, in SoleTrustee Lok Shikshana Trust v.
Commissioner of Income Tax, Mysore95, has observed that Section
57, sub-section (4) enjoins upon the Courts to take judicial notice of the
course of proceedings of Parliament on the assumption that it is relevant. C

123. There can be no dispute that parliamentary standing
committee report being in the public domain is a public document.
Therefore, it is admissible under Section 74 of the Evidence Act and
judicial notice can be taken of such a document as envisaged under
Section 57(4) of the Evidence Act. There can be no scintilla of doubt D
that the said document can be taken on record. As stated earlier, it can
be taken aid of to understand and appreciate a statutory provision if it is
unclear, ambiguous or incongruous. It can also be taken aid of to
appreciate what mischief the legislative enactment intended to avoid.
Additionally, it can be stated with certitude that there can be a fair comment E
on the report and a citizen in his own manner can advance a criticism in
respect of what the report has stated. Needless to emphasise that the
right to fair comment is guaranteed to the citizens. It is because freedom
of speech, as permissible within constitutional parameters, is essential
for all democratic institutions. Fair comments show public concern and,
therefore, such comments cannot be taken exception to. That is left to F
public opinion and perception on which the grand pillar of democracy is
further strengthened. And, in all such circumstances, the question of
parliamentary privilege would not arise.
124. In the case at hand, the controversy does not end there
inasmuch as the petitioners have placed reliance upon the contents of G
the parliamentary standing committee report and the respondents submit
that they are forced to controvert the same. Be it clearly stated, the
petitioners intend to rely on the contents of the report and invite a contest.
In such a situation, the Court would be duty bound to afford the
95
(1976) 1 SCC 254 H
116 SUPREME COURT REPORTS [2018] 4 S.C.R.

A respondents an opportunity of 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
B
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
C 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
D of a Minister or of a Mover of a bill made in the Parliament for highlighting
the purpose of an enactment or, for that matter, a parliamentary committee
report that had come into existence prior to the enactment of a law and
a contestable/conflicting matter of “fact” stated in the parliamentary
committee report. It is the parliamentary proceedings falling within the
former category of which Courts are enjoined under Section 57, sub-
E section (4) to take judicial notice of, whereas, for the latter category of
parliamentary proceedings, the truthfulness of the contestable matter of
fact stated during such proceedings has to be proved in the manner
known to law.
126. This again brings us to the hazardous zone wherein taking
F judicial notice of parliamentary standing committee reports for a factual
finding will obviously be required to be proved for ascertaining the truth
of a contestable matter of fact stated in the said report.
127. Taking judicial notice of the Parliamentary Standing
Committee report can only be to the extent that such a report exists. As
G already stated, the said report can be taken aid of for understanding the
statutory provision wherever it is felt so necessary or to take cognizance
of a historical fact that is different from a contest. The word “contest”,
according to Black’s Law Dictionary, means to make defence to an
adverse claim in a Court of law; to oppose, resist or dispute; to strive to
H win or hold; to controvert, litigate, call in question, challenge to defend.
KALPANA MEHTA v. UNION OF INDIA 117
[DIPAK MISRA, CJI]

This being the meaning of the word “contest”, the submission to adjudge A
the lis on the factual score of the report is to be negatived.
P. The decisions in which parliamentary standing committee
report/s have been referred to
128. Before we proceed to record our conclusions, it is necessary
to allude to various authorities cited by the petitioners herein highlighting B
the occasions where this Court has referred to and taken note of various
Parliamentary Committee reports. In Catering Cleaners of Southern
Railway v. Union of India and another96, the catering cleaners of the
Southern Railway filed a writ petition praying for abolition of the contract
labour system and their absorption as direct employees of the principal C
employer, viz., the Southern Railway. This Court referred to the
Parliamentary Committee Report under the Chairmanship of K.P. Tewari
which had dealt with the question of abolishing the contract labour system
and regularizing the services 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 D
their exploitation.
129. In State of Maharashtra v. Milind and others97, 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 E
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 F
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.
G
130. In Ms. Aruna Roy and Others v. Union of India and
others98,the education policy framed by NCERT was challenged by the
petitioners. This Court while dealing with the said issue, referred, in
96
(1987) 1 SCC 700
97
(2001) 1 SCC 4
98
(2002) 7 SCC 368 H
118 SUPREME COURT REPORTS [2018] 4 S.C.R.

A extensio, to the Parliamentary committee report which had made several
recommendations in this regard. After so referring to the report, the
Court was of the view that if the recommendations made by the
Parliamentary Committee are accepted by the NCERT and are sought
to be implemented, it cannot be stated that its action is arbitrary or
unjustified.
B
131. In M.C. Mehta v. Union of India and others99,this Court
referred to the report of the Standing Committee of Parliament on
Petroleum & Natural Gas which expressed concern over the phenomenal
rise of air pollution and made some recommendations. The Court, in this
case, made it clear that it had mentioned the report only for indicating
C that the Government was and is proactively supporting the reduction of
vehicular pollution by controlling the emission norms and complying with
the Bharat Stage standards.
132. In Lal Babu Priyadarshi v. Amritpal Singh100, while dealing
with a Trade Mark case under various sections of the Trade and
D Merchandise Marks Act, 1958 [repealed by the Trade Marks Act, 1999
(47 of 1999), this Court referred to the Eighth Report on the Trade Marks
Bill, 1993 submitted by the Parliamentary Standing Committee which
was of the opinion that any symbol relating to Gods, Goddesses or places
of worship should not ordinarily be registered as a trade mark.
E 133. The petitioners have also referred to other cases such as
Gujarat Electricity Board v. Hind Mazdoor Sabha and
others101,Modern Dental College and Research Centre and others
v. State of Madhya Pradesh and others102 and Krishan Lal Gera v.
State of Haryana and others103 wherein also this Court has made a
F passing reference to reports of the Parliament Standing Committees.
134. We have, for the sake of completeness, noted the decisions
relied upon by the petitioners to advance their stand. But it is condign to
mention here that in the abovereferred cases, the question of contest/
challenge never emerged. In all the cases, the situation never arose that
warranted any contest amongst the competing parties for arriving at a
G
particular factual finding. That being the position, the said judgments, in
99
(2017) 7 SCC 243
100
(2015) 16 SCC 795
101
(1995) 5 SCC 27
102
(2016) 7 SCC 353
103
H (2011) 10 SCC 529
KALPANA MEHTA v. UNION OF INDIA 119
[DIPAK MISRA, CJI]

our considered opinion, do not render any assistance to the controversy A
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 B
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 C
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 D
engagement so that the concept of judicial restraint does not take the
colour of judicial abdication or judicial passivism. Judicial engagement
requires that the Courts maintain their constitutional obligation to remain
the sentinel on qui vive. It requires a vigilant progressive judiciary for
the rights and liberties of the citizens to be sustained. Thus, as long as a
decision of a Court is progressive being in accord with the theory of E
judicial engagement, the approach would be to ensure the proper discharge
of duty by the Constitutional Courts so as to secure the inalienable rights
of the citizens recognized by the Constitution. A Constitutional Court
cannot abdicate its duty to allow injustice to get any space or not allow
real space to a principle that has certain range of acceptability. Stradford F
C.J., speaking the tone and tenor in Jajbhay v Cassim104,has observed:-
“Now the Roman-Dutch law, which we must apply, is a living
system capable of growth and development to allow adaptation to
the increasing complexities and activities of modern civilised life.
The instruments of that development are our own Courts of law.
G
In saying that, of course, I do not mean that it is permissible for a
Court of law to alter the law; its function is to elucidate, expound
and apply the law. But it would be idle to deny that in the process
of the exercise of those functions rules of law are slowly and
beneficially evolved.”
104
1939 AD 537at p 542 H
120 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 136. In Miranda v. Arizona105,the Supreme Court of United
States observed:-
‘That the Court’s holding today is neither compelled nor even
strongly suggested by the language of the Fifth Amendment, is at
odds with American and English legal history, and involves a
B departure from a long line of precedent does not prove either that
the Court has exceeded its powers or that the Court is wrong or
unwise in its present reinterpretation of the Fifth Amendment. It
does, however, underscore the obvious — that the Court has not
discovered or found the law in making today’s decision, nor has it
derived it from some irrefutable sources; what it has done is to
C make new law and new public policy in much the same way that
it has in the course of interpreting other great clauses of the
Constitution. This is what the Court historically has done. Indeed,
it is what it must do, and will continue to do until and unless there
is some fundamental change in the constitutional distribution of
D 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 India106,Vishaka and others v. State of Rajasthan and others107,
E Prakash Singh and others v. Union of India and others108, Common
Cause (A Regd. Society) v. Union of India109and Shakti Vahini v.
Union of India and others110. 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
F 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
G existing precepts to suit the new emerging situations. Therefore, the
105
384 U.S. 436 (1966)
106
(1984) 2 SCC 244
107
(1997) 6 SCC 241
108
(2006) 8 SCC 1
109
2018 (4) SCALE 1
110
H 2018 (5) SCALE 51
KALPANA MEHTA v. UNION OF INDIA 121
[DIPAK MISRA, CJI]

Constitutional Courts should always adopt a progressive approach and A
display a dynamic and spirited discharge of duties regard being had to
the concepts of judicial statesmanship and judicial engagement, for they
subserve the larger public interest. In the case at hand, the constitutional
obligation persuades us to take the view that the Parliamentary Standing
Committee Report or any Parliamentary Committee Report can be taken
B
judicial notice of and regarded as admissible in evidence, but it can neither
be impinged nor challenged nor its validity can be called in question.
Q. Conclusions
138. In view of the aforesaid analysis, we answer the referred
questions in the following manner:- C
(i) Parliamentary Standing Committee report can be taken aid of
for the purpose of interpretation of a statutory provision wherever
it is so necessary and also it can be taken note of as existence of
a historical fact.
(ii) Judicial notice can be taken of the Parliamentary Standing D
Committee report under Section 57(4) of the Evidence Act and it
is admissible under Section 74 of the said Act.
(iii) In a litigation filed either under Article 32 or Article 136 of the
Constitution of India, this Court can take on record the report of
the Parliamentary Standing Committee. However, the report E
cannot be impinged or challenged in a court of law.
(iv) Where the fact is contentious, the petitioner can always collect
the facts from many a source and produce such facts by way of
affidavits, and the Court can render its verdict by way of
independent adjudication. F
(v) The Parliamentary Standing Committee report being in the
public domain can invite fair comments and criticism from the
citizens as in such a situation, the citizens do not really comment
upon any member of the Parliament to invite the hazard of violation
of parliamentary privilege. G
139. The reference is answered accordingly.
140. Let the Writ Petitions be listed before the appropriate Bench
for hearing.

H
122 SUPREME COURT REPORTS [2018] 4 S.C.R.

A DR. D. Y. CHANDRACHUD, J.
This judgment has been divided into sections to facilitate analysis.
They are:
A Reference to the Constitution Bench
B Submissions
B
C The Constitution
D Parliamentary Standing Committees
E Parliamentary privilege
E.1 UK Decisions
C E.2 India
F Separation of powers : a nuanced modern doctrine
G A functional relationship
H Conclusion
D A Reference to the Constitution Bench
1. 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 vaccines1 to prevent cervical cancer.
The petitioners allege that the process of licensing was not preceded by
E 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
F
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.
G
2. On 12 August 2014, a Bench of two judges formulated the
questions which would have to be addressed in the course of the
proceedings.2 They are:

1
Human Papillomavirus (HPV)
2
Writ Petition (Civil) No. 558 of 2012
H
KALPANA MEHTA v. UNION OF INDIA 123
[DR. D. Y. CHANDRACHUD, J.]

“(i) Whether before the drug was accepted to be used as a vaccine A
in India, the Drugs Controller General of India and the ICMR
had followed the procedure for said introduction?
(ii) What is the action taken after the Parliamentary Committee
had submitted the 72nd Report on 30.8.2013?
(iii) What are the reasons for choosing certain places in Gujarat B
and Andhra Pradesh?
(iv) What has actually caused the deaths and other ailments who
had been administered the said vaccine?
(v) Assuming this vaccine has been administered, regard being C
had to the nature of the vaccine, being not an ordinary one,
what steps have been taken for monitoring the same by the
competent authorities of the Union of India, who are concerned
with the health of the nation as well as the State Governments
who have an equal role in this regard?
D
(vi) The girls who were administered the vaccine, whether proper
consent has been taken from their parents/guardians, as we
have been apprised at the Bar that the young girls had not
reached the age of majority?
(vii) What protocol is required to be observed/followed, assuming
E
this kind of vaccination is required to be carried out?”
3. At the hearing, the petitioners relied upon the 81st Report of the
Parliamentary Standing Committee dated 22 December 2014. The
petitioners sought to place reliance on the Report so as to enable the
Court to be apprised of the facts and to facilitate its conclusions and
F
directions. This was objected to.
4. The issue which arose before the Court was whether a report
of a Parliamentary Standing Committee can be relied upon in a public
interest litigation under Article 32 or Article 226. If it could be adverted
to, then an allied issue was the extent to which reliance could be placed
upon it and its probative value. The then Attorney General for India, in G
response to a request for assistance, submitted that reports of
Parliamentary Standing Committees are at best an external aid to
construction, to determine the surrounding circumstances or historical
facts for understanding the mischief sought to be remedied by legislation.
The Union government urged that reports of Parliamentary Standing H
124 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Committees are meant to guide the functioning of its departments and
are a precursor to debates in Parliament. However, those reports (it
was urged) cannot be utilized in court nor can they be subject to a contest
between litigating parties.
5. In an order dated 5 April 2017, a two judge Bench of this Court
B 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
C 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
D 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.”3
E 6. The referring order notes that when a mandamus is sought, the
Court has to address the facts which are the foundation of the case and
the opposition, in response. If a Court were to be called upon to peruse
the report of a Parliamentary Standing Committee, a contestant to the
litigation may well seek to challenge it. Such a challenge, according to
F the Court, in the form of “an invitation to contest” the report of a
Parliamentary Committee “is likely to disturb the delicate balance that
the Constitution provides between the constitutional institutions”. Such a
contest and adjudication would (in that view) be contrary to the privileges
of Parliament which the Constitution protects. Hence according to the
Court:
G
“73…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. ”
3
Id, at pages 320-321
H
KALPANA MEHTA v. UNION OF INDIA 125
[DR. D. Y. CHANDRACHUD, J.]

A substantial question involving the interpretation of the Constitution A
having arisen, two questions have been referred to the Constitution Bench
under Article 145(3):
“(i) Whether in a litigation filed before this Court either under
Article 32 or Article 136 of the Constitution of India, the Court
can refer to and place reliance upon the report of the Parliamentary B
Standing Committee; and
(ii) Whether such a report can be looked at for the purpose of
reference and, if so, can there be restrictions for the purpose of
reference regard being had to the concept of parliamentary
privilege and the delicate balance between the constitutional C
institutions that Articles 105, 121 and 122 of the Constitution
conceive?.”4
B Submissions
7. Leading the submissions on behalf of the petitioners, Mr Harish
Salve, learned Senior Counsel underscored the importance of three D
constitutional principles:
(i) Privileges of Parliament;
(ii) Comity of institutions; and
(iii) Separation of powers. E
Based on them, the submission is that reference to what transpires
in a co-equal constitutional institution must be circumspect and consistent
with due deference to and comity between institutions. Freedom of speech
and expression is implicit in the working of every institution and it is that
institution alone which can regulate its own processes. In Parliament, F
what speakers state is controlled by the House or, as the case may be,
by its Committee and a falsehood 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 G
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
4
Id, at page 322
H
126 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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.
8. On the above conceptual foundation, Mr Salve urged that the
B 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
C reflected in the statements made by a Minister before the
House can be discerned; and
(iii) Reports of Parliamentary Standing Committees are meant
for consideration before Parliament and can only be regarded
as “considered advice” to the House.
D
Except in the two situations enumerated above, no petition seeking
a mandamus can be brought before the court on the basis of such a
report for the reason that (i) No right can be founded on the
recommendation of a House Committee; and (ii) Relying on such a report
may result in a challenge before the court, impinging upon Parliamentary
E privileges.
9. Mr K K Venugopal, the learned Attorney General for India has
supported the adoption of a rule of exclusion, based on the privileges of
the legislature, separation of powers and as a matter of textual
interpretation of the Constitution. In his submission:
F
I Committees of Parliament being an essential adjunct to
Parliament, and their reports being for the purpose of advising
and guiding Parliament in framing laws and the executive for
framing policies, it would be a breach of privilege of Parliament
to judicially scrutinize and/or review these reports for any
G purpose whatsoever;
II The broad separation of powers, which is a part of the basic
structure of the Constitution of India, would prevent Courts
from subjecting the reports of Parliamentary Standing
Committees to scrutiny or judicial review; and
H
KALPANA MEHTA v. UNION OF INDIA 127
[DR. D. Y. CHANDRACHUD, J.]

III A conjoint reading of Articles 105 and 122 of the Constitution A
would establish that, expressly or by necessary implication,
there is a bar on the Courts from scrutinizing or judicially
reviewing the functioning or reports of the Committees of
Parliament.
10. Refuting the submissions which have been urged by the B
Attorney General and on behalf of the pharmaceutical companies, Mr.
Colin Gonsalves, learned Senior Counsel urges that there can be no
objection to reliance being placed on the Report of a Parliamentary
Standing Committee where (as in the present case) there is no attempt
(i) to criticize Parliament; C
(ii) to summon a witness; or
(iii) to breach a privilege of the legislating body.
The Report of a Parliamentary Standing Committee is (it is urged)
relied upon only for the court to seek guidance from it. The court may D
derive such support in whichever manner it may best regard in the interest
of justice, to advance a cause which has been brought in a social action
litigation. According to Mr 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 E
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 F
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 G
action for what is stated in Parliament. Such is not the position here. Mr
Gonsalves submitted that in significant respects, our Constitution marks
a historical break from the English Parliamentary tradition. India has
adopted the doctrine of constitutional supremacy and not Parliamentary
sovereignty, as in the UK. Hence, cases decided under the English
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128 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Common Law cannot be transplanted, without regard to context, in Indian
jurisprudence on the subject. The unrestrained use of parliamentary
privileges, it has been urged, stands modified in the Indian context, which
is governed by constitutional supremacy. In matters involving public
interest or issues of a national character, both the institutions – Parliament
and the courts – must act together. As a matter of fact, Parliament has
B
placed the Report of its Standing Committee in the public domain. It is
ironical, Mr Gonsalves urges, that in the present case, it is the executive
which seeks to protect itself from disclosure in the guise of parliamentary
privileges. Finally, it has been urged that the public interest jurisdiction is
not adversarial and constitutes a distinctly Indian phenomenon. Where
C the fulfilment and pursuit of a constitutional goal, national purpose or
public interest is in issue, both Parliament and the judiciary will act in
comity. No issue arises here in relation to the separation of powers or
breach of Parliamentary privilege. On the contrary, it has been submitted
that the approach of the respondents is not in accordance with the march
of transparency in our law.
D
11. Mr Anand Grover, learned Senior Counsel submitted that if
there is no dispute that a certain statement was made before Parliament
or, as the case may be, a Parliamentary Standing Committee, such a
statement can be relied upon as a fact of it being stated in Parliament.
The truth of the statement is, in the submission of the learned Senior
E Counsel, another and distinct issue. The Report is uncontentious not as
regards the truth of its contents but of it having been made. The court in
the exercise of its power of judicial review will not hold that an inference
drawn by a Parliamentary Committee is wrong. But the court can
certainly look at a statement where there is no dispute of it having been
F made.
12. Mr Shyam Divan and Mr Gourab Banerji, learned Senior
Counsel have broadly pursued the same line of argument as the learned
Attorney General for India and Mr Harish Salve.
C The Constitution
G
13. Articles 105, 118, 119 and 121 are comprised in Part V of 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,
H there shall be freedom of speech in Parliament.
KALPANA MEHTA v. UNION OF INDIA 129
[DR. D. Y. CHANDRACHUD, J.]

(2) No member of Parliament shall be liable to any proceedings in A
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.
B
(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
C
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 D
of Parliament or any committee thereof as they apply in relation
to members of Parliament.”
14. The first major principle which emerges from Article 105 is
that it expects, recognizes and protects the freedom of speech in
Parliament. Stated in a sentence, the principle enunciates a vital norm E
for the existence of democracy. Parliament represents collectively,
through the representative character of its members, the voice and
aspirations of the people. Free speech within the Parliament is crucial
for democratic governance. It is through the fearless expression of
their views that Parliamentarians pursue their commitment to those who
elect them. The power of speech exacts democratic accountability from F
elected governments. The free flow of dialogue ensures that in framing
legislation and overseeing government policies, Parliament reflects the
diverse views of the electorate which an elected institution represents.
15. The Constitution recognizes free speech as a fundamental
right in Article 19(1)(a). A separate articulation of that right in Article G
105(1) shows how important the debates and expression of view in
Parliament have been viewed by the draftspersons. Article 105(1) is not
a simple reiteration or for that matter, a surplusage. It embodies the
fundamental value that the free and fearless exposition of critique in
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130 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Parliament is the essence of democracy. Elected members of Parliament
represent the voices of the citizens. In giving expression to the concerns
of citizens, Parliamentary speech enhances democracy. Article 105(1)
emphasizes free speech as an institutional value, apart from it being a
part of individual rights. Elected members of the legislature continue to
wield that fundamental right in their individual capacity. Collectively, their
B
expression of opinion has an institutional protection since the words which
they speak are spoken within the portals of Parliament. This articulated
major premise is however subject to the provisions of the Constitution
and is conditioned by the procedure of Parliament embodied in its rules
and standing orders. The recognition in clause (1) that there shall be
C freedom of speech in Parliament is effectuated by the immunity conferred
on Members of Parliament against being liable in a court of law for
anything said or for any vote given 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
D
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 Constitution5. Clause (4) of Article 105 widens
E 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
F
Parliament and are as much, Parliament.
16. Article 118 deals with the Rules of Procedure of Parliament:
“118.(1) Each House of Parliament may make rules for regulating,
subject to the provisions of this Constitution, its procedure and the
G conduct of its business.
(2) Until rules are made under clause (1), the rules of procedure
and standing orders in force immediately before the
commencement of this Constitution with respect to the Legislature

5
H The Constitution (44th amendment) Act, 1978 came into force from 20 June, 1979.
KALPANA MEHTA v. UNION OF INDIA 131
[DR. D. Y. CHANDRACHUD, J.]

of the Dominion of India shall have effect in relation to Parliament A
subject to such modifications and adaptations as may be made
therein by the Chairman of the Council of States or the Speaker
of the House of the People, as the case may be.
(3) The President, after consultation with the Chairman of the
Council of States and the Speaker of the House of the People, B
may make rules as to the procedure with respect to joint sittings
of, and communications between, the two Houses.
(4) At a joint sitting of the two Houses the Speaker of the House
of the People, or in his absence such person as may be determined
by rules of procedure made under clause (3), shall preside.” C
The procedure and conduct of business of Parliament are governed
by the rules made by each House. The rule making authority is subject
only to the provisions of the Constitution. Until rules are framed, the
procedure of Parliament was to be governed by the rules of procedure
and Standing Orders which applied to the legislature of the Dominion of D
India immediately before the commencement of the Constitution (subject
to adaptations and modifications). Rules of procedure for joint sittings
of the two Houses of Parliament and in regard to communications
between them are to be framed by the President in consultation with the
Chairman of the Rajya Sabha and the Speaker of the Lok Sabha.
E
17. Article 119 provides for regulation by law of the procedure in
Parliament in relation to financial business. Article 119 provides thus:
“119.Parliament may, for the purpose of the timely completion of
financial business, regulate by law the procedure of, and the
conduct of business in, each House of Parliament in relation to F
any financial matter or to any Bill for the appropriation of moneys
out of the Consolidated Fund of India, and, if and so far as any
provision of any law so made is inconsistent with any rule made
by a House of Parliament under clause (1) of article 118 or with
any rule or standing order having effect in relation to Parliament
under clause (2) of that article, such provision shall prevail.” G
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.
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132 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 18. 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
B 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.”
C
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
D any Court for the exercise of those powers. Those who perform the
task – sometimes unenviable – of maintaining order in Parliament are
also protected, to enable them to discharge their functions dispassionately.
19. The provisions contained in Chapter II of Part V are mirrored,
in the case of the State Legislatures, in Chapter III of Part VI. The
E corresponding provisions in regard to State Legislatures are contained in
Articles 194, 208, 209 and 212.
20. The fundamental principle which the Constitution embodies is
in terms of its recognition of and protection to the freedom of speech in
Parliament.
F Freedom of speech has been entrenched by conferring an
immunity against holding a Member of Parliament liable for what has
been spoken in Parliament or for a vote which has been tendered. The
freedom to speak is extended to other persons who have a right to speak
in or take part in the proceedings of Parliament. Parliament is vested
with the authority to regulate its procedures and to define its powers,
G
privileges and immunities. The same protection which extends to
Parliamentary proceedings is extended to proceedings in or before the
Committees constituted by each House. Parliament has been vested
with a complete and exclusive authority to regulate its own procedure
and the conduct of its business.
H
KALPANA MEHTA v. UNION OF INDIA 133
[DR. D. Y. CHANDRACHUD, J.]

21. While making the above provisions, the Constitution has A
carefully engrafted provisions to ensure institutional comity between
Parliament and the judiciary. Under Article 121, the conduct of a Judge
of the Supreme Court or of a High Court in the discharge of duties
cannot be discussed in Parliament (except upon a motion for removal).
Article 211 makes a similar provision in regard to the state legislatures.
B
D Parliamentary Standing Committees
22. Parliamentary Committees exist both in the Westminster form
of government in the United Kingdom as well in the Houses of Parliament
in India. In the UK, Select Committees have emerged as instruments
through which Parliament scrutinizes the policies and actions of C
government and enforces accountability of government and its officers.
Select committees are composed of specifically nominated members of
Parliament and exercise the authority which the House delegates to
them. The role of select committees has been set forth in Erskine May’s
Treatise on The Law, Privileges, Proceedings and Usage of D
Parliament6 :
“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 E
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 F
is referred to a Select Committee, the Bill constitutes the order of
reference7. Select committees are a microcosm of the House. During
the course of their work, Select Committees rely upon documentary and
oral evidence8:
“Once received by the committee as evidence, papers prepared G
for a committee become its property and may not be published
6
Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament,
(Lexis Nexis, 24th edn., 2011), 37.
7
Id, at pages 805-806.
8
Erskine May, at page 818.
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134 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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 published with the report of the committee9:
B “It is usual practice of committees to publish the evidence which
they have taken during the course of an inquiry with the report to
which the evidence is relevant. In the case of longer inquiries, the
evidence may be separately published during the course of the
inquiry. In such cases, however, that evidence may be published
C again with the report. Additionally, committees may take evidence
with no intention of producing a subsequent report and publish it
without comment.”
A Select committee decides when to publish any report which it
has agreed10.
D Article 105 of the Indian Constitution recognizes committees of
the Houses of Parliament. Rules of Procedure of the Lok Sabha and the
Rajya Sabha framed under Article 118(1) of the Constitution inter alia
provide for the organization and working of these committees11.
23. The rules governing procedure and the conduct of business in
E the Rajya Sabha provide for the constitution of the committees of the
House. Chapter IX of the Rules contains provisions relating to legislation.
Provisions have been made for Bills which originate in the Rajya Sabha
and for those which originate in the Lok Sabha and are transmitted to
the Rajya Sabha. Under Rule 72, members of a Select Committee for a
F Bill are appointed by the Rajya Sabha when a motion that the Bill be
referred to a Select Committee is made. Rule 84 empowers the Select
Committee to require the attendance of witnesses or the production of
papers or records. The Select Committee can hear expert evidence and
representatives of special interests affected by the measure. Documents
submitted to the Committee cannot be withdrawn or altered without its
G knowledge and approval. The Select Committee, under Rule 85, is
9
Erskine May, at page 825.
10
Erskine May, at page 838
11
Rules of Procedure and Conduct of Business in Lok Sabha, (Lok Sabha Secretariat,
15th edn., April 2014).
Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha),
H (published by the Secretary General, 9 th edn., August 2016).
KALPANA MEHTA v. UNION OF INDIA 135
[DR. D. Y. CHANDRACHUD, J.]

empowered to decide upon its procedure and the nature of questions A
which it may address to a witness called before it. Rule 86 provides for
the printing and publication of evidence and empowers the Committee
to direct that the evidence or a summary be laid on the table. Evidence
tendered before the Select Committee can only be published after it has
been laid on the table. The Select Committee prepares its report on the
B
Bill referred to it, under Rule 90. Under Rule 91, the report of the Select
Committee on a Bill, together with minutes of dissent, is presented to the
Rajya Sabha by the Chairperson 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 C
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
D
Rule 125, if a motion for that purpose is carried.
24. 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 E
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 Members of the Lok Sabha. Rule 270 specifies the functions
of the Standing Committees: F
“270. Functions
Each of the Standing Committees shall have the following
functions, namely:-
(a) to consider the Demands for Grants of the related Ministries/ G
Departments 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;
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136 SUPREME COURT REPORTS [2018] 4 S.C.R.

A (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:
B Provided that the Standing Committees shall not consider matters
of day-to-day administration of the related Ministries/
Departments.”
Rule 274 envisages that the report of the Standing Committee
“shall be based on broad consensus” though a member may record a
C dissent. The report of the Committee is presented to the Houses of
Parliament. Under Rule 275, provisions applicable to Select Committees
on Bills apply mutatis mutandis to the Standing Committees. Rule 277
indicates that the report of a Standing Committee is to have persuasive
value and is treated as advice to the House:
D “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.”
Department related Parliamentary Standing Committees are
Committees of the Houses of Parliament. The Committees can regulate
E
their procedure for requiring the attendance of persons and for the
production of documents. The Committees can hear experts or special
interests. These Committees ensure parliamentary oversight of the
work of the ministries/departments of government. As a part of that
function, each Committee considers demands for grants, examines Bills
F which are referred to it, considers the annual reports of the ministry/
department and submits reports on national long-term policy documents,
when they have been referred for consideration. The reports of these
Committees are published and presented to the Houses of Parliament.
They have a persuasive value and are advice given by the Committee to
Parliament.
G
25. 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
H
KALPANA MEHTA v. UNION OF INDIA 137
[DR. D. Y. CHANDRACHUD, J.]

“the moral and ethical conduct” of members, prepare a code of A
conduct, examine cases of alleged breach and to tender advise to
members on questions involving ethical standards.
E Parliamentary privilege
E.1 UK Decisions
26. In the UK, a body of law has evolved around the immunity B
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.
27. Article 9 of the Bill of Rights, 1689 declares that: C
“..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 proceedings of Parliament, D
outside it. This would compromise to the need for debate and discussion
on matters of governance in a democracy. Hence, there has been an
effort to bring a sense of balance: a balance which will ensure free
speech within Parliament but will allow a free expression of views among
citizens. Both are essential to the health of democracy. E
Article 9 has provided the foundation for a line of judicial precedent
in the English Courts. In 1884, the principle was formulated In Bradlaugh
v Gossett12:
“The House of Commons is not subject to the control of Her
Majesty’s Courts in its administration of that part of the Statute F
law which has relation to its internal procedure only. What is said
or done within its walls cannot be inquired into a court of law. A
resolution of the House of Commons cannot change the law of
the land. But a court of law has no right to inquire into the propriety
of a resolution of the House restraining a member from doing
within the walls of the House itself something which by the general G
law of the land he had a right to do.”
In Dingle v Associated Newspapers Ltd 13 , the above
formulation was held to constitute “a clear affirmation of the exclusive
12
(1884) 12 Q.B.D. 271
13
(1960) 2 Q.B. 405 H
138 SUPREME COURT REPORTS [2018] 4 S.C.R.

A right of Parliament to regulate its own internal proceedings”. Applying
that principle, the Queen’s Bench Division ruled that the report of a
Select Committee of the House of Commons could not be impugned
outside Parliament. This principle was applied in Church of Scientology
of California v Johnson-Smith14, when an action for libel was brought
against a Member of Parliament for a statement made during the course
B
of a television interview. In order to refute the defendants’ plea of fair
comment, the plaintiff sought to prove malice by leading evidence of
what had taken place in Parliament. Rejecting such an attempt, the court
adverted to the following statement of principle in Blackstone:
“The whole of the law and custom of Parliament has its origin
C from this one maxim, “that whatever matter arises concerning
either House of Parliament ought to be examined, discussed, and
adjudged in that House to which it relates, and not elsewhere.”
Reiterating that principle, the court held:

D “…what is said or done in the House in the course of any
proceedings there cannot be examined outside Parliament for the
purpose 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
E 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.
28. In Pepper(Inspector of Taxes) v Hart15, 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
F
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
G
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
14
(1972) 1 Q.B. 522
15
(1992) 3 W.L.R. 1032
H
KALPANA MEHTA v. UNION OF INDIA 139
[DR. D. Y. CHANDRACHUD, J.]

discloses the mischief aimed at or the legislative intention lying A
behind the ambiguous or obscure words.”
Holding that such a relaxation would not involve the court criticizing
what has been said in Parliament since the court was only giving effect
to the words used by the Minister, the court held that the exclusionary
rule should be relaxed to permit reference to Parliamentary materials B
where:
“(a) legislation is ambiguous or obscure, or leads to an absurdity;
(b) the material relied upon consists of one or more statements by
a Minister or other promoter of the Bill together if necessary with
such other Parliamentary material as is necessary to understand C
such statements and their effect; (c) the statements relied upon
are clear.”
29. The decision of the Privy Council in Richard William Prebble
v Television New Zealand (“Prebble”)16 arose from a case where,
in a television programme transmitted by the defendant, allegations were D
levelled against the Government of New Zealand, involving the sale of
state owned assets to the private sector while the plaintiff was the Minister
of the department. In his justification, the defendant alleged that the
plaintiff had made statements in the House calculated to mislead. Lord
Browne-Wilkinson held that the defendant was precluded from
questioning a statement made by the plaintiff before the House of E
Parliament. The principle was formulated thus:
“In addition to article 9 itself, there is a long line of authority which
supports a wider principle, of which article 9 is merely one
manifestation, viz. that the courts and Parliament are both astute
to recognize their respective constitutional roles. So far as the F
courts are concerned they will not allow any challenge to be made
to what is said or done within the walls of Parliament in
performance of its legislative functions and protection of its
established privileges: Burdett v. Abbot (1811) 14 East 1; Stockdale
v. Hansard (1839) 9 Ad. & EI. 1; Bradlaugh v. Gossett (1884) 12 G
Q.B.D. 271; Pickin v. British Railways Board (1974) A.C. 765;
Pepper v. Hart (1993) A.C. 593. As Blackstone said in his
Commentaries on the Laws of England, 17th ed. (1830), vol. 1,
p.163:
16
(1994) 3 W.L.R. 970
H
140 SUPREME COURT REPORTS [2018] 4 S.C.R.

A ‘the whole of the law and custom of Parliament has its origin
from this one maxim, ‘that whatever matter arises concerning
either House of Parliament, ought to be examined, discussed,
and adjudged in that House to which it relates, and not
elsewhere.”
B The Privy 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”)17 which had allowed a witness to be
C 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:
D
“(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
E 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 the drawing of,
inferences or conclusions wholly or partly from anything forming
part of those proceedings in Parliament.”
F In Prebble, the Privy Council held that Section 16(3) contains
“what, in the opinion of their lordships, is the true principle to be applied”.
ThePrivy Council held that the Australian view in Murphy was not
correct, so far as the rest of the Commonwealth is concerned, because
it was in conflict with a long line of authority that courts will not allow
G any challenge to what is said or done in Parliament.
The Defamation Act, 1996 (UK) contained a provision in Section
13 under which an individual litigant in a defamation case could waive
Parliamentary privilege. The report of the Joint Committee observed
that the provision “undermined the basis of privilege: freedom of speech
17
H (1986) 64 A.L.R. 498
KALPANA MEHTA v. UNION OF INDIA 141
[DR. D. Y. CHANDRACHUD, J.]

was the privilege of the House as a whole and not of the individual A
Member in his or her own right, although an individual Member could
assert and rely on it.” The waiver provision was deleted on the ground
that the privilege belongs to the House and not to an individual member.
The impact of the provisions of Section 13 of the Defamation
Act, 1996 was dealt with in a 2011 decision of the House of Lords in B
Hamilton v AI Fayed (“Hamilton”)18. The defendant had alleged that
as a Member of Parliament, the plaintiff had accepted cash from him
for asking questions on his behalf in the House of Commons. The plaintiff
commenced an action for defamation against the defendant, waiving his
parliamentary privileges pursuant to Section 13 of the Defamation Act,
1996. Lord Browne-Wilkinson dwelt on parliamentary privileges, which C
prohibit the court from questioning whether a witness before Parliament
had misled it. The House of Lords held that any attempt to cross-examine
the defendant to the effect that he had lied to a Parliamentary committee
when he had stated that he had paid money for questions would have
infringed parliamentary privileges. However, under Section 13, the plaintiff D
could waive his own protection from Parliamentary privilege. The
consequence was thus:
“The privileges of the House are just that. They all belong to the
House and not to the individual. They exist to enable the House to
perform its functions. Thus section 13(1) accurately refers, not to E
the privileges of the individual MP, but to “the protection of any
enactment or rule of law” 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 F
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.
G
30. 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:
18
(2001) 1 A.C. 395
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142 SUPREME COURT REPORTS [2018] 4 S.C.R.

A “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.”
B
But for the provisions of Section 13, evidence by Hamilton that
he had not received money for questions would come into conflict with
the evidence tendered by AI Fayed which was accepted by the
Parliamentary Committees. Hence it would have been impermissible to
cross-examine Al Fayedto the effect that he had falsely stated before
C the Parliamentary Committees that he had paid money for questions.
Such a consequence was obviated by the waiver provisions of Section 13.
31. In Toussaint v Attorney General of Saint Vincent and
the Grenadines (“Toussaint”)19, the Privy Council dealt with a case
where a claim was brought against the government by an individual
D claiming that the acquisition of his land was unlawful. In support, he
referred to a speech of the Prime Minister in Parliament and a transcript
taken from the video-tape of a televised debate. The submission was
that the true reason for the acquisition of the land, as evident from the
speech of the Prime Minister, was political. Adverting to Prebble, Lord
E Mance, speaking for the Privy Council, noted that there were three
principles involved: the need to ensure the free exercise of powers by
the legislature on behalf of the electors; the need to protect the interest
of justice; and the interest of justice in ensuring that all relevant evidence
is available to the courts. The Privy Council held that it was permissible
to rely upon the speech of the Prime Minister though the attempt was to
F demonstrate an improper exercise of power for extraneous purposes.
As Lord Mance observed:
“In such cases, the minister’s statement is relied upon to explain
the conduct occurring outside Parliament, and the policy and
motivation leading to it. This is unobjectionable although the aim
G 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 639 A. The Joint Committee expressed the view
that Parliament should welcome this development, on the basis
19
H (2007) 1 W.L.R. 2825
KALPANA MEHTA v. UNION OF INDIA 143
[DR. D. Y. CHANDRACHUD, J.]

that “Both parliamentary scrutiny and judicial review have important A
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
B
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.”” C

The Prime Minister’s statement in the House was “relied on for
what it says, rather than questioned or challenged”. This was permissible.
32. Toussaint is an important stage in the development of the
law. A statement made in Parliament by a Minister could be relied upon, D
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 E
government.
33. In Regina (Bradley and Others) v Secretary of State for
Work and Pensions (Attorney General intervening)20,the Court of
Appeal visited the statement in Prebble that Section 16(3) of the
Parliamentary Privileges Act, 1987 in Australia declared the true effect F
of Article 9 of the Bill of Rights and that Section 16(3) contained “the
true principle to be applied” in the case. Holding that the dictum in
Prebble appears to be too wide, it was held:
“…But paragraph (c), if read literally, is extremely wide. It would
seem to rule out reliance on or a challenge to a ministerial statement G
itself on judicial review of the decision embodied in that statement
(which was permitted in R v Secretary of State for the Home
Department, Ex p Brind [1991] 1 AC 696, and to which no objection
has been raised in the present case), or to resolve an ambiguity in
20
(2007) EWHC 242 (Admin) H
144 SUPREME COURT REPORTS [2018] 4 S.C.R.

A legislation (Pepper v Hart [1993] AC 593), or to assist in establishing
the policy objectives of an enactment (Wilson v First County Trust
Ltd (No 2)[2004] 1 AC 816). It would also prohibit reliance on
report of the Joint Committee on Human Rights, which, as Mr
Lewis’s submissions rightly state, have been cited in a number of
appellate cases in this jurisdiction: a very recent example is R v F
B
[2007] QB 960 para 11. As Lord Nicholls of Birkenhead observed
in Wilson’s case [2004] 1 AC 816, para 60:
“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,
C 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.”
D I therefore do not treat the text of paragraph(c) of the Australian
statute as being a rule of English law.”
The report of a Select Committee, it was observed, is a written
document published after a draft report has been placed before and
approved by the Committee. Hence, it was unlikely that the use of such
E a report in the submissions of a party in civil litigation would have inhibited
the Committee from expressing its view. The freedom of speech in
Parliament principle would not be affected, since there would be no
inhibition of that freedom.
34. The decision of the Administrative Court in the UK in Office
F of Government Commerce v Information Commissioner
(Attorney General intervening)21 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:
G 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
H 21
(2009) 3 W.L.R. 627
KALPANA MEHTA v. UNION OF INDIA 145
[DR. D. Y. CHANDRACHUD, J.]

separation of powers, which in our constitution is restricted to the A
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
B
proceedings and decisions of the legislature and by the legislature
(and the executive) for the proceedings and decisions of the courts.
Conflicts between Parliament and the courts are to be avoided.
The above principles lead to the conclusion that the courts cannot
consider allegations of impropriety or inadequacy or lack of
accuracy in the proceedings of Parliament. Such allegations are C
for Parliament to address, if it thinks fit, and if an allegation is well
founded any sanction is for Parliament to determine. The
proceedings of Parliament include parliamentary questions and
answers. These are not matters for the courts to consider.”
Yet, the Court also noticed the limitation of the above principles, D
when proceedings in Parliament are relied upon simply as relevant
historical facts or to determine whether the legislation is incompatible
with the European Convention for the Protection of Human Rights which
was embodied in the Human Rights Act 1998 (“HRA”) in the UK. In
that context the Court observed: E
“However, it is also important to recognise the limitations of these
principles. There is no reason why the courts should not receive
evidence of the proceedings of Parliament when they are simply
relevant historical facts or events; no “questioning” arises in such
a case… Similarly, it is of the essence of the judicial function that F
the courts should determine issues of law arising from legislation
and delegated legislation. Thus, there can be no suggestion of a
breach of parliamentary privilege if the courts decide that legislation
is incompatible with the European Convention for the Protection
of Human Rights and Fundamental Freedoms: by enacting the
Human Rights Act 1998…” G
The Court held that the conclusions of the report of a Committee
that had led to legislation could well be relied upon since the purpose of
the reference is either historical or made with a view to ascertaining the
mischief at which the legislation was aimed. If the evidence given to a
H
146 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Committee is uncontentious – the parties being in agreement that it is
true and accurate - there could be no objection to it being taken into
account. What the Tribunal could not do was to refer to contentious
evidence given to a Parliamentary Committee or the finding of the
Committee on an issue which the Tribunal had to determine.
B 35. The decision indicates a calibrated approach to Parliamentary
privilege consistent with the enactment of the HRA. The doctrine of
incompatibility envisages a 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
C 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-à-vis Parliamentary legislation would be to miss a
significant constitutional development.
D Wheeler v The Office of the Prime Minister22 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
E 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 particular form, the courts must intervene and
F either grant a declaration or issue an order prohibiting the
government from taking certain steps unless and until there is
such a vote. In my judgment, that would involve the courts
impermissibly straying from the legal into the political realm.”
The plea, the Court ruled, would amount to the Court questioning
G things done in Parliament and instead of facilitating the role of Parliament,
the Court would be usurping it.
In Wilson v First County Trust Ltd 23 the House of Lords
observed that the Human Rights Act 1998 had obligated the Court to
22
(2014) EWHC 3815 (Admin)
23
H (2004) 1 AC 816
KALPANA MEHTA v. UNION OF INDIA 147
[DR. D. Y. CHANDRACHUD, J.]

exercise a new role in respect of primary legislation. Courts were A
required to evaluate the effect of domestic legislation upon rights
conferred by the European Convention and where necessary; to make a
declaration of incompatibility. While doing so, the Court would primarily
construe the legislation in question. Yet, the practical effect of a statutory
provision may require the court to look outside the statute. The court
B
would be justified in looking at additional background information to
understand the practical impact of a statutory measure on a Convention
right and decide upon the proportionality of a statutory provision. In that
context, the Court held:
“This additional background material may be found in published
documents, such as a government white paper. If relevant C
information is provided by a minister or, indeed, any other member
of either House in the course of a debate on a Bill, the courts
must also be able to take this into account. The courts, similarly,
must be able to have regard to information contained in
explanatory notes prepared by the relevant government department D
and published with a Bill. The courts would be failing in the due
discharge of the new role assigned to them by Parliament if they
were to exclude from consideration relevant background
information whose only source was a ministerial statement in
Parliament or an explanatory note prepared by his department
while the Bill was proceeding through Parliament. By having E
regard to such material, the court would not be “questioning”
proceedings in Parliament or intruding improperly into the legislative
process or ascribing to Parliament the views expressed by a
minister. The court would merely be placing itself in a better position
to understand the legislation. F
To that limited 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 G
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
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148 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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.
B 36. The decision of the Privy Council in Owen Robert Jennings
v Roger Edward WyndhamBuchanan24 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 Parliamentary privileges (Chaired by Lord
C Nicholls of Birkenhead) observed, freedom to discuss parliamentary
proceedings is necessary in a democracy:
“Freedom for the public and the media to discuss parliamentary
proceedings outside Parliament is as essential to a healthy
democracy as the freedom of members to discuss what they
D choose within Parliament.”
Media reporting of Parliamentary proceedings, the Court held,
has been an important instrument of public debate. Hence the freedom
of the Members of Parliament to discuss freely within its portals must
be weighed with the freedom of the public to discuss and debate matters
E of concern to them:
“As it is, parliamentary proceedings are televised and recorded.
They are transcribed in Hansard. They are reported in the press,
sometimes less fully than parliamentarians would wish. They form
a staple of current affairs and news programmes on the radio and
F television. They inform and stimulate public debate. All this is
highly desirable, since the legislature is representative of the whole
nation. Thus, as the Joint Committee observed in its executive
summary (page 1):
“This legal immunity is comprehensive and absolute. Article 9
should therefore be confined to activities justifying such a high
G
degree of protection, and its boundaries should be clear.””
These observations reflect a concern to define the boundaries of
the immunities under Article 9 in clear terms. While recognizing the
absolute nature of the immunity, its boundaries must “be confined to
24
(2004) UKPC 36
H
KALPANA MEHTA v. UNION OF INDIA 149
[DR. D. Y. CHANDRACHUD, J.]

activities justifying such a high degree of protection”. The right of A
Members of Parliament to speak their minds in Parliament without
incurring a liability is absolute. However, that right is not infringed if a
member, having spoken and in so doing defamed another person,
thereafter chooses to repeat his statement outside Parliament. In such
circumstances, the privilege may be qualified. While it is necessary that
B
the legislature and the courts do not intrude into the spheres reserved to
the other, a reference to Parliamentary records to prove that certain
words were in fact uttered is not prohibited.
“In a case such as the present, however, reference is made to the
parliamentary record only to prove the historical fact that certain
words were uttered. The claim is founded on the later extra- C
parliamentary statement. The propriety of the member’s behaviour
as a parliamentarian will not be in issue. Nor will his state of
mind, motive or intention when saying what he did in Parliament.”
37. 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 D
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
E
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 F
emphasises that debates in Parliament have a public element. Public
debate is the essence of and a barometer to the health of democracy.
Though the privilege which attaches to a speech in Parliament is absolute,
the immunity extends to those activities within Parliament, which justify
a high degree of protection. As Parliamentary proceedings have come
G
to be widely reported, published and televised, the common law has
come to recognize that a mere reference to or production of a record of
what has been stated in Parliament does not infringe Article 9 of the Bill
of Rights. In other words, a reference to Parliamentary record to prove
a historical fact that certain words were spoken is not prohibited. What
is impermissible is to question the truthfulness or veracity of what was H
150 SUPREME COURT REPORTS [2018] 4 S.C.R.

A stated before Parliament in any forum including a court, outside
Parliament. Nor can a Member of Parliament be cross-examined in a
proceeding before the court with reference to what was stated in
Parliament. The validity of an Act of Parliament or of the proceedings
of a Parliamentary Committee cannot be questioned in a court in the
UK. The enactment of the Human Rights Act has led to a recognition
B
that in testing whether a statutory provision is incompatible with a
Convention right, it may become necessary for the court to adjudge the
practical effects of a law. To do so, the court may legitimately have
reference to background material which elucidates the rationale for the
law, the social purpose which it has sought to achieve and the
C proportionality of its imposition. In order to understand the facets of the
law which bear upon rights protected under the European Convention,
the court may justifiably seek recourse to statements of ministers, policy
documents and white papers to find meaning in the words of the statute.
The law in the UK has hence developed to recognize that free speech in
Parliament and separation of powers must be placed in a scale of
D
interpretation that is cognizant of the need to protect the democratic
rights of citizens.
E.2 India
38. The law in India has witnessed a marked degree of evolution.
E Indian jurisprudence on the subject has recognized the importance of
the freedom of speech in Parliament, the principle of separation of powers
and the concomitant protection afforded to members from being held
liable for what is spoken in Parliament. Principles grounded in the common
law in the UK have not remained just in the realm of common law. The
Constitution, in recognizing many of those principles imparts sanctity to
F 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
G Constitution which subjects all constitutional authorities to the mandate
of a written Constitution.
39. The locus classicus on the subject of parliamentary privileges
is the seven-judge Bench decision in Re: Powers, Privileges and
Immunities of State Legislatures25. It was argued before this Court
25
Special Reference No. 1 of 1964: (1965) 1 SCR 413
H
KALPANA MEHTA v. UNION OF INDIA 151
[DR. D. Y. CHANDRACHUD, J.]

that the privilege of the House to construe Article 194(3) and to determine A
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
B
sole and exclusive jurisdiction. The decision recognizes that while in the
UK, Parliament is sovereign, the Indian Constitution creates a federal
structure and the supremacy of the Constitution is fundamental to
preserving the delicate balance of power between constituent units:
“38. …it is necessary to bear in mind one fundamental feature of
a federal constitution. In England, Parliament is sovereign; and in C
the words of Dicey, the three distinguishing features of the principle
of Parliamentary Sovereignty are that Parliament has the right to
make or unmake any law whatever; that no person or body is
recognized by the law of England as having a right to override or
set aside the legislation of Parliament, and that the right or power D
of Parliament extends to every part of the Queen’s dominions.
On the other hand, the essential characteristic of federalism is
“the distribution of limited executive, legislative and judicial authority
among bodies which are co-ordinate with and independent of each
other”. The supremacy of the Constitution is fundamental to the
existence of a federal State in order to prevent either the E
legislatures of the federal unit or those of the member States from
destroying or impairing that delicate balance of power which
satisfied the particular requirements of States which are desirous
of union, but not prepared to merge their individuality in a unity.
This supremacy of the constitution is protected by the authority of F
an independent judicial body to act as the interpreter of a scheme
of distribution of powers. Nor is any change possible in the
constitution by the ordinary process of federal or State legislation.
Thus the dominant characteristic of the British Constitution cannot
be claimed by a federal constitution like ours”.
G
While the legislatures in our country have plenary powers, they
function within the limits of a written Constitution. As a result, the
sovereignty which Parliament can claim in the UK cannot be claimed by
any legislature in India “in the literal absolute sense”.

H
152 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 40. The immunity conferred on Members of Parliament from
liability to “any proceedings in any court in respect of anything said or
any vote given by him in Parliament” (Article 105(2)) was deliberated
upon in a judgment of the Constitution Bench in P V Narasimha Rao v
State (CBI/SPE)26. Justice G N Ray agreed with the view of Justice S
P Bharucha on the scope of the immunity under clauses (2) and (3) of
B
Article 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
C those of the Privy Council noted earlier27). 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
D 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
E 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 upon the
no confidence motion. Nevertheless, the majority held that the expression
“in respect of” in Article 105(2) must perceive a ‘broad meaning’. The
alleged conspiracy and agreement had nexus in respect of those votes,
F and the proposed inquiry in the criminal proceedings was in regard to its
motivation. The submission of the Attorney General for India that the
protection under Article 105(2) is limited to court proceedings and to a
speech that is given or a vote that is cast was not accepted by the
Constitution Bench for the following reasons:
G “136. It is difficult to agree with the learned Attorney General
that though the words “in respect of” must receive a broad
meaning, the protection under Article 105(2) is limited to court
26
(1998) 4 SCC 626
27
Bradlaugh v Gosset: (1884) 12 QBD 271: 53 LJQB 290; Prebble v Television New
H Zealand Ltd: (1994) 3 AII ER 407, PC; R v Currie: (1992)
KALPANA MEHTA v. UNION OF INDIA 153
[DR. D. Y. CHANDRACHUD, J.]

proceedings that impugn the speech that is given or the vote that A
is cast or arises thereout or that the object of the protection would
be fully satisfied thereby. The object of the protection is to enable
Members to speak their mind in Parliament and vote in the same
way, freed of the fear of being made answerable on that account
in a court of law. It is not enough that Members should be protected
B
against civil action and criminal proceedings, the cause of action
of which is their speech or their vote. To enable Members to
participate fearlessly in parliamentary debates, Members need
the wider protection of immunity against all civil and criminal
proceedings that bear a nexus to their speech or vote. It is for that
reason that a Member is not “liable to any proceedings in any C
court in respect of anything said or any vote given by him”. Article
105(2) does not say, which it would have if the learned Attorney
General were right, that a Member is not liable for what he has
said or how he has voted. While imputing no such motive to the
present prosecution, it is not difficult to envisage a Member who
D
has made a speech or cast a vote that is not to the liking of the
powers that be being troubled by a prosecution alleging that he
had been party to an agreement and conspiracy to achieve a certain
result in Parliament and had been paid a bribe.”28
The view of the minority was that the offence of bribery is made
out against a bribe taker either upon taking or agreeing to take money E
for a promise to act in a certain manner. Following this logic, Justice SC
Agrawal held that the criminal liability of a Member of Parliament who
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 F
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.
41. The judgment of the Constitution Bench in Raja Ram Pal v G
Hon’ble Speaker, Lok Sabha29, 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
28
Id, at pages 729-730
29
(2007) 3 SCC 184
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154 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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
B
privilege claimed by the legislature is actually available to it:
“62. In view of the above clear enunciation of law by Constitution
Benches of this Court in case after case, there ought not be any
doubt left that whenever Parliament, or for that matter any State
Legislature, claims any power or privilege in terms of the provisions
C contained in Article 105(3), or Article 194(3), as the case may be,
it is the Court which has the authority and the jurisdiction to
examine, on grievance being brought before it, to find out if the
particular power or privilege that has been claimed or asserted by
the legislature is one that was contemplated by the said
D constitutional provisions or, to put it simply, if it was such a power
or privilege as can be said to have been vested in the House of
Commons of the Parliament of the United Kingdom as on the
date of commencement of the Constitution of India so as to become
available to the Indian Legislatures.”30
E While Parliament has the power to expel a member for a contempt
committed, the doctrine of “exclusive cognizance” adopted in the UK
has no application in India which is governed by a written Constitution.
Though Parliament is possessed of a plentitude of powers, it is subject to
terms of legislative competence and to the restrictions imposed by
fundamental rights. Article 21 is attracted when the liberty of a Member
F of Parliament is threatened by imprisonment in execution of a
parliamentary privilege. Fundamental rights can be invoked both by a
member and by a non-member when faced by the exercise of
parliamentary privilege. Drawing the distinction between the UK and
India, Chief Justice Sabharwal observed:
G “363. That the English cases laying down the principle of exclusive
cognizance of Parliament, including Bradlaugh [(1884) 12 QBD
271: 53 LJQB 290: 50 LT 620], arise out of a jurisdiction controlled
by the constitutional principle of sovereignty of Parliament cannot
30
Id, at page 259
H
KALPANA MEHTA v. UNION OF INDIA 155
[DR. D. Y. CHANDRACHUD, J.]

be lost sight of. In contrast, the system of governance in India is A
founded on the norm of supremacy of the Constitution which is
fundamental to the existence of the Federal State.”31
Consequently, proceedings which are tainted as a result of a
substantive illegality or unconstitutionality (as opposed to a mere
irregularity) would not be protected from judicial review. The doctrine B
of exclusive cognizance was evolved in England as incidental to a system
of governance 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.
C
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 D
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 E
scrutiny cannot stop, as earlier held, merely on the privilege being
found, especially when breach of other constitutional provisions
has been alleged.”32
The Court will not exercise its power of judicial review where
there is merely an irregularity of procedure, in view of the provisions of F
Article 122(1). But judicial review is not “inhibited in any manner” where
there is a gross illegality or a violation of constitutional provisions. While
summarizing the conclusions of the judgment, Chief Justice Sabharwal
emphasized the need for constitutional comity, since Parliament being a
coordinate constitutional institution. The expediency and necessity for G
the exercise of the power of privilege are for the legislature to determine.
Yet, judicial review is not excluded for the purpose of determining whether
the legislature has trespassed on the fundamental rights of its citizens.
31
Id, at page 348
32
Id, at page 360
H
156 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Among the conclusions in the judgment, of relevance to the present
case, are the following:
“431. …(k) There is no basis to the claim of bar of exclusive
cognizance or absolute immunity to the parliamentary proceedings
in Article 105(3) of the Constitution;
B (l) The manner of enforcement of privilege by the legislature can
result in judicial scrutiny, though subject to the restrictions contained
in the other constitutional provisions, for example Article 122 or
212; and
(m) Article 122(1) and Article 212(1) displace the broad doctrine
C of exclusive cognizance of the legislature in England of exclusive
cognizance of internal proceedings of the House rendering
irrelevant the case-law that emanated from courts in that
jurisdiction; inasmuch as the same has no application to the system
of governance provided by the Constitution of India;.”33
D 42. The decision in Raja Ram Pal has been adverted to in the
subsequent judgment of the Constitution Bench in Amarinder Singh v
Special Committee, Punjab Vidhan Sabha 34. Chief Justice
Balakrishnan, speaking for the Constitution Bench, held that all the
privileges which have been claimed by the House of Commons cannot
E be claimed automatically by legislative bodies in India. Legislatures in
India do not have the power of self-composition which is available to the
House of Commons. Indian legislatures are governed by a written
Constitution.
43. The limits of comparative law must weigh in the analysis in
F this area of constitutional law, when the Court is confronted by a copious
attempt, during the course of submissions, to find meaning in the nature
and extent of parliamentary privilege in India from decided cases in the
UK. The fundamental difference between the 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
G 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
33
Id, at page 372
34
(2010) 6 SCC 113
H
KALPANA MEHTA v. UNION OF INDIA 157
[DR. D. Y. CHANDRACHUD, J.]

part of the basic features of the Constitution is intended to ensure that A
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
B
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 violation of a constitutional
prescription is shown, judicial review cannot be ousted. C
F Separation of powers: a nuanced modern doctrine
44. The submission of the Attorney General is that the carefully
structured dividing lines between the judicial, executive and legislative
wings of the state would be obliterated if the court were to scrutinize or
judicially review reports of parliamentary committees. The principle of D
separation, it has been submitted, interdicts the courts from scrutinizing
or reviewing reports of parliamentary committees. Judicial review may
well result in a conflict between the two institutions of the State and is
hence – according to the submission – best eschewed.
45. Separation of powers between the legislature, the executive E
and the judiciary covers a large swathe of constitutional history spanning
the writings of Montesquieu and Blackstone, to the work of Dicey
and Jennings. Gerangelos (2009) laments that in the UK, parliamentary
sovereignty has prevented the principle of separation from emerging as
a judicially enforceable standard35: F
“Britain’s unwritten constitution and the influence of Diceyan
orthodoxy, emphasising parliamentary sovereignty and a fusion of
powers which did not countenance judicial invalidation of legislative
action, has meant that the separation of powers has not become a
source of judicially-enforceable constitutional limitations. The
G
precise status of the doctrine has varied from time to time and the
extent to which the doctrine nevertheless provides some restraint
on legislative interference with judicial process cannot be
determined with precision. It can be said, however, that
35
Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL
P ROCESS, CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009). H
158 SUPREME COURT REPORTS [2018] 4 S.C.R.

A constitutional entrenchment of the separation doctrine has not been
part of the Westminster constitution tradition; a tradition which
has not, in any event, placed much store by written constitutions
with their accompanying legalism and rigidities. The prevailing
influence from that quarter has been the maintenance of judicial
independence in terms of institutional independence through the
B
protection of tenure and remuneration, and afforded statutory
protection in the Act of Settlement in 1701, as opposed to the
protection of judicial power in a functional sense.”
The impact of the doctrine is seen best in terms of the institutional
independence of the judiciary from other organs of the state. The doctrine
C is 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
D 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.
E
46. 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
F normative36. On the other hand, other scholars regard the doctrine as “a
fundamental underlying constitutional principle which informs the whole
British constitutional structure”37. Yet, even scholars who emphasise the
importance of the separation of powers in the UK acknowledge that the
36
See A Tomkins, PUBLIC LAW (Oxford University Press, 2003) 37 (as cited by Gerangelos
G at page 274).
37
E Barendt, ‘Separating of Powers and Constitutional Government’ [1995] Public
Law 599 at 599-60, C Munro, Studies in Constitutional Law, 2 nd 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
H University Press, 2001)
KALPANA MEHTA v. UNION OF INDIA 159
[DR. D. Y. CHANDRACHUD, J.]

Constitution does not strictly observe such a separation. Courts in the A
UK do not possess a direct power of judicial review to invalidate
legislation though, with the enactment of the Human Rights Act, the
doctrine of incompatibility has become an entrenched feature of the
law. Gerangelos (supra) states that “the most that can be said is that
the separation of powers does play an influential role as a constitutional
B
principle, but as a non-binding one”.38 He cites Professor Robert
Stevens39:
“In modern Britain the concept of the separation of powers is
cloudy and the notion of the independence of the judiciary remains
primarily a term of constitutional rhetoric. Certainly its penumbra,
and perhaps even its core, are vague. No general theory exists, C
although practically the English have developed surprisingly
effective informal systems for the separation of powers; although
it should never be forgotten that the system of responsible
government is based on a co-mingling of the executive with the
legislature. The political culture of the United Kingdom, however, D
provides protections for the independence of the judiciary, which
are missing in law.”
The importance of the principle of separation essentially lies in
the independence of the judiciary. The protections in the Act of Settlement
1701 have now been reinforced in the Constitutional Reform Act, 2005. E
Though the supremacy of Parliament is one of the fundamental features
in the UK and the unwritten Constitution does not mandate a strict
separation of powers, it would be difficult to regard a state which has no
control on legislative supremacy as a constitutional state founded on the
rule of law40. Consequently, where the rule of law and constitutionalism
govern society there may yet be fundamental principles inhering in the F
nature of the polity, which can be enforced by the judiciary even against
Parliament, in the absence of a written Constitution41. In other words,
even in the context of an unwritten Constitution, the law has a certain
internal morality as a part of which it embodies fundamental notions of
justice and fairness. G
38
Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL
P ROCESS, CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009)
39
R Stevens, ‘A Loss of Innocence?: Judicial Independence and the Separation of
powers’ (1999) 19 OXFORD JOURNAL OF LEGAL STUDIES 365.
40
Allan, Law Liberty and Justice (supra note 36)
41
Gerangelos, at page 277. H
160 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 47. The interpretation of the doctrine of separation of powers has
evolved from being a “one branch – one function approach”42 with limited
exceptions, to a concept which involves an integration of the ‘division of
work’ and ‘checks and balances’43. 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
B
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.
C 48. In 1967, MJC Vile in his book titled ‘Constitutionalism and
the Separation of Powers’44 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
D 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 identifiable function of government, legislative,
executive, or judicial. Each branch of the government must be
E confined to the exercise of its own function and not allowed to
encroach upon the functions of the other branches. Furthermore,
the persons who compose these three agencies of government
must be kept separate and distinct, no individual being allowed to
be at the same time a member of more than one branch. In this
way, each of the branches will be a check to the others and no
F single group of people will be able to control the machinery of the
State.”45
This definition becomes important to facilitate an understanding
of the reconstructed and modern view on separation of powers vis-à-vis
42
Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David
G Dyzenhaus and Malcolm Thorburn (eds.)P HILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL
LAW, (Oxford University Press, 2016) 221 (hereinafter, “Philosophical Foundations of
Constitutional Law”).
43
See MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF P OWERS (Oxford University
Press, 1967).
44
Id.
H 45
Id, at page 13
KALPANA MEHTA v. UNION OF INDIA 161
[DR. D. Y. CHANDRACHUD, J.]

its traditional understanding. Vile essentially proposes that ‘division of A
labor’ and ‘checks and balances’ are intrinsic to the theory of separation
of powers. In his view, a scheme of checks and balances would involve
a degree of mutual supervision among the branches of government, and
may therefore result in a certain amount of interference by one branch
into the functions and tasks of the other.46 Aileen Kavanagh, has presented
B
a scholarly analysis of separation of powers in a chapter titled ‘The
Constitutional Separation of Powers’.47 She concurs with the view
expressed by MJC Vile that separation of powers includes two
components, that of ‘division of labour’ and ‘checks and balances’. These
two components are strengthened by the deep-rooted ethos of coordinated
institutional effort and joint activity between branches of the government C
in the interest of good governance. 48 Instead of an isolated
compartmentalization of branches of government, she highlights the
necessary independence, interdependence, interaction and
interconnection between these branches in a complex interactive setting.49
Kavanagh acknowledges that in view of the stronghold of the pure
D
doctrine over our understanding of separation of powers, the idea of a
collective enterprise between the branches of the government for the
purpose of governing may seem jarring. However, she argues that this
idea of “branches being both independent and interdependent-distinct
but interconnected-also has some pedigree in canonical literature.”50
Kavanagh thus opines that the tasks of law-making, law-applying and E
law-executing are collaborative in nature, 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 F
to account. At other times, the interaction will be a form of
46
See, MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford University
Press, 1967).
47
Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David
Dyzenhaus and Malcolm Thorburn (eds.)P HILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL G
LAW, (Oxford University Press, 2016) 221.
48
See, D Kyritsis, ‘What is Good about Legal Conventionalism?’ (2008) 14 LEGAL
THEORY 135, 154 (as cited in Philosophical Foundations of Constitutional Law, at page
235).
49
Id.
50
Philosophical Foundations of Constitutional Law, at page 236.
H
162 SUPREME COURT REPORTS [2018] 4 S.C.R.

A cooperative engagement where the branches have to support each
other’s role in the joint endeavor.”51
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
B 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’.52 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
C to ensure that general public values such as welfare, autonomy,
transparency, efficiency and fairness are protected and secured for the
benefit of citizens.53
Thus, in a comparative international context, authors have accepted
separation of powers to widely include two elements: ‘division of labour’
D and ‘checks and balances’. The recent literature on the subject matter
encourages inter-institutional assistance and aid towards the joint
enterprise of good governance. The current view on the doctrine of
separation of powers also seeks to incorporate mutual supervision,
interdependence and coordination because the ultimate aim of the
E different branches of the government, through their distinct functions is
to ensure good governance and to serve public interest, which is essential
in the background of growing social and economic interests in a welfare
state. This stands in contrast with the former and original interpretation
of the doctrine, which sought to compartmentalize and isolate the different
branches of the government from one another, with limited permissible
F exceptions.
51
K Malleson, ‘The Rehabilitation of Separation of Powers in UK’ in L. de Groot-van
Leeuwen and W Rombouts, S EPARATION OF P OWERS IN THEORY AND P RACTICE: AN
INTERNATIONAL P ERSPECTIVE (Nijmegen: Wolf Publishing, 2010) 99-122, 115 (as cited in
Philosophical Foundations of Constitutional Law, at page 237).
G 52
J Waldron, ‘Authority for Officials’ in L. Meyer, S. Paulson and T. Pogge (eds),
RIGHTS, CULTURE, AND THE LAW: THEMES FROM THE LEGAL AND POLITICAL P HILOSOPHY OF
JOSEPH RAZ (Oxford University Press, 2003) 45-70.
53
See, J King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 OXFORD JOURNAL
OF LEGAL STUDIES 409, 428; See also, Buckley v. Attorney General [1950] Irish Reports
67, 80 (per O’Bryne J) (as cited in Philosophical Foundations of Constitutional Law,
H at page 235).
KALPANA MEHTA v. UNION OF INDIA 163
[DR. D. Y. CHANDRACHUD, J.]

49. Eoin Carolan’s book titled ‘The New Separation of Powers’ A
(2009) reflects an attempt to reshape the traditional doctrine of
separation, to make it relevant to the practical realities of modern
government. He notes that while the tripartite separation of powers
between the legislature, executive and judiciary had “conceptual simplicity
with an impeccable academic pedigree”54, the doctrine has obvious
B
limitations in the sense that it does not satisfactorily explain the emergence
and growth of the modern administrative State we see today. The author
contends that an institutional theory like the separation of powers can no
longer be accepted in its original form if it cannot account for this
‘significant tranche of government activity’. Among the characteristics
of the modern administrative State is that public power is exercised in a C
decentralized manner and on an ever-growing discretionary basis.55
The shared growth of administrative powers of the bureaucracy
in the modern state defies the tripartite division. Therefore, a realistic
modern application of the theory is necessary. The modern system of
government has grown in ways previously thought unfathomable, and D
now encompasses a breadth and diversity previously unseen. Government
today is characterized by the increase in powers 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 E
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.56In this view, the modern State is distinctly F
different from Locke’s seventeenth century Model and Montesquieu’s
eighteenth century ideas:
“The state is now dirigiste, discretionary, and broadly dispersed.”57
50. Carolan thus proposes that to be suitable, a theory of institutional
justice must be rooted in the principle of non-arbitrariness. He believes G
54
Eoin Carolan, THE NEW SEPARATION OF POWERS- A THEORY FOR THE MODERN STATE
(Oxford University Press, 2009) 253.
55
Id.
56
Eoin Carolan, The Problems with the Theory of Separation of Powers’, SSRN,
(2011) 26.
57
Supra note 53, 256 H
164 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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. Carolan’s proposed model places
emphasis on the exercise of power on the basis of inter-institutional
dialogue which ensures that a communicative process has taken place58.
Carolan describes his model thus:
B
“The prescribed institutional structure operates by inter-organ
mingling instead of separation. Individual decisions are delivered
at the end of a multi institutional process, the central concern of
which is to organize, structure, manage, and—crucially—ensure
the input of all relevant institutional interests. On this model, the
C government and the courts are presented as providing an orienting
framework within which administrative decision-making will occur.
These first-order organs function at the level of macro-social
organization, adopting general measures which are expected to
advance their constituent social interest. The government specifies
D the actions it feels are required (or requested) to enhance the
position of the collective. The courts, for their part, insist on the
process precautions necessary to secure individual protection.
Issues of informational efficacy and non-arbitrariness combine to
ensure, however, that these provisions are not particularized.”65
E While the autonomy of the administration is respected as a vital
institutional process, corrective measures are required where an institution
has strayed outside the range of permissible outcomes. He speaks of a
collaborative process of exercising power, with the judiciary acting as a
restraining influence on the arbitrary exercise of authority.

F 51. While the Indian Constitution has been held to have recognized
the doctrine of separation of powers, it does not adopt a rigid separation.
In Ram Jawaya Kapur v State of Punjab59,this Court held:
“12. …The Indian Constitution has not indeed recognised the
doctrine of separation of powers in its absolute rigidity but the
G functions of the different parts or branches of the Government
have been sufficiently differentiated and consequently it can very
well be said that our Constitution does not contemplate assumption,
by one organ or part of the State, of functions that essentially
belong to another.”
58
Supra note 53, 132
H 59
(1955) 2 SCR 225
KALPANA MEHTA v. UNION OF INDIA 165
[DR. D. Y. CHANDRACHUD, J.]

Reduced to its core, separation entails that one organ or institution A
of the state cannot usurp the powers of another.
In Re: Powers, Privileges and Immunities of State
Legislatures60, this 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 B
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 Kerala61, separation of
powers was regarded as a feature of the basic structure of the Indian C
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 D
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; E
(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the
executive and the judiciary;
F
(5) Federal character of the Constitution.”62
Justices Shelat and Grover emphasized the doctrine of separation
as a part of the checks and balances envisaged by the Constitution:
“577. …There is ample evidence in the Constitution itself to
indicate that it creates a system of checks and balances by reason G
of which powers are so distributed that none of the three organs
it sets up can become so pre-dominant as to disable the others
60
(1965) 1 SCR 413
61
(1973) 4 SCC 225
62
Id, at page 366 H
166 SUPREME COURT REPORTS [2018] 4 S.C.R.

A from exercising and discharging powers and functions entrusted
to them. Though the Constitution does not lay down the principle
of separation of powers in all its rigidity as is the case in the
United States Constitution yet it envisages such a separation to a
degree…” 63
B In Indira Nehru Gandhi v Raj Narain 64 , Justice YV
Chandrachud held that while the Constitution does not embody a rigid
separation of governmental powers, a judicial function cannot be usurped
by the legislature:
“689. …the exercise by the legislature of what is purely and
C indubitably a judicial function is impossible to sustain in the context
even of our cooperative federalism which contains no rigid
distribution of powers but which provides a system of salutary
checks and balances.”65
The 39th amendment of the Constitution did precisely that and
D was held to violate the basic structure.
In I R Coelho v State of Tamil Nadu66,the Court underlined the
functional complementarity between equality, the rule of law, judicial
review and separation of powers:
“129. Equality, rule of law, judicial review and separation of powers
E form parts of the basic structure of the Constitution. Each of these
concepts are intimately connected. There can be no rule of law, if
there is no equality before the law. These would be meaningless
if the violation was not subject to the judicial review. All these
would be redundant if the legislative, executive and judicial powers
F are vested in one organ. Therefore, the duty to decide whether
the limits have been transgressed has been placed on the
judiciary.”67
A Constitution Bench of this Court in State of Tamil Nadu v
State of Kerala68 ruled on the importance of separation as an entrenched
constitutional principle. The court held:
G
63
Id, at page 452.
64
(1975) Suppl SCC 1
65
Id, at page 261.
66
(2007) 2 SCC 1
67
Id, at page 105
68
H (2014) 12 SCC 696
KALPANA MEHTA v. UNION OF INDIA 167
[DR. D. Y. CHANDRACHUD, J.]

“126.1. Even without express provision of the separation of A
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
B
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 C
judiciary is not different from the Constitutions of the countries
which contain express provision for separation of power.”69
52. 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 D
legislative competence can enact validating law which remedies a defect
pointed out in a judgment of a court. While the legislature cannot ordain
that a decision rendered by the court is invalid, it may by enacting a law,
take away the basis of the judgment such that the conditions on which it
is based are so fundamentally altered that the decision could not have
been given in the altered circumstances.70 E

53. In State of UP v Jeet S Bisht71, the Court held that the
doctrine of separation of powers limits the “active jurisdiction” of each
branch of government. However, even when the active jurisdiction of
an organ of the State is not challenged, the doctrine allows for methods
to be used to prod and communicate to an institution either its shortfalls F
or excesses in discharging its duty. The court recognized that
fundamentally, the purpose of the doctrine is to act as a scheme of checks
and balances over the activities of other organs. The Court noted that
the modern concept of separation of powers subscribes to the
69
Id, at page 771 G
70
I.N. Saksena v. State of MP (1976) 4 SCC 750; Indian Aluminium Co. v. State of
Kerala (1996) 7 SCC 637; S.S Bola and Others v. B.D Sardana & Others (1997) 8 SCC
522; Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1969) 2 SCC 283;
Supreme Court Advocates-on-Record-Association and Ors. v. Union of India (2016) 5
SCC 1
71
(2007) 6 SCC 586 H
168 SUPREME COURT REPORTS [2018] 4 S.C.R.

A understanding that it should not only demarcate the area of functioning
of various organs of the State, but should also, to some extent, define the
minimum content in that delineated area of functioning.
Justice SB Sinha addressedthe need for the doctrine to evolve, as
administrative bodies are involved in the dispensation of socio-economic
B entitlements:
“83. If we notice the evolution of separation of powers doctrine,
traditionally the checks and balances dimension was only
associated with governmental excesses and violations. But in
today’s world of positive rights and justifiable social and
C economic entitlements, hybrid administrative bodies, private
functionaries discharging public functions, we have to perform
the oversight function with more urgency and enlarge the field
of checks and balances to include governmental inaction.
Otherwise we envisage the country getting transformed into a state
of repose. Social engineering as well as institutional engineering
D therefore forms part of this obligation.”72
54. The constitutional validity of the Members of Parliament Local
Area Development (“MPLAD”) Scheme, which allocates funds to MPs
for development work in their constituencies was considered by a
Constitution Bench of this Court in Bhim Singh v Union of India73.
E The challenge was that by entrusting funds to MPs, the Scheme vests
governmental functions in legislators and violates the separation of
powers. 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
F 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
G 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.
72
Id, at page 619
73
(2010) 5 SCC 538
H
KALPANA MEHTA v. UNION OF INDIA 169
[DR. D. Y. CHANDRACHUD, J.]

55. In Supreme Court Advocates-on-Record Association v A
Union of India74, 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 B
legislative checks placed on the judiciary whereby its administrative
functioning can be and is controlled, but these do not necessarily
violate the theory of separation of powers or infringe the
independence of the judiciary as far as decision-making is
concerned. As has been repeatedly held, the theory of separation
of powers is not rigidly implemented in our Constitution, but if C
there is an overlap in the form of a check with reference to an
essential or a basic function or element of one organ of State as
against another, a constitutional issue does arise. It is in this context
that the 99th Constitution Amendment Act has to be viewed—
whether it impacts on a basic or an essential element of the D
independence of the judiciary, namely, its decisional
independence.”75
56. In State of West Bengal v Committee for Protection of
Democratic Rights, West Bengal76, this Court held that the doctrine
of separation of powers could not be invoked to limit the Court’s power E
to exercise judicial review, in a case where fundamental rights are sought
to be breached or abrogated on the ground that exercise of the power
would impinge upon the doctrine.
57. In a more recent decision of a Bench of two learned judges of
this Court in Common Cause v Union of India77,the Court construed F
the provisions of the Lokpal and Lokayuktas Act, 2013 under which a
multi-member selection committee for the appointment of the Lokpal is
to consist, among others, of the Leader of the Opposition. A Bill for
amending the provisions of the Act was referred to a parliamentary
committee which proposed the inclusion of the leader of the largest
opposition party in the Lok Sabha as a member, in lieu of the Leader of G
the Opposition in the selection committee. The grievance of the petitioners
74
(2016) 5 SCC 1
75
Id, at page 583
76
(2010) 3 SCC 571
77
(2017) 7 SCC 158
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170 SUPREME COURT REPORTS [2018] 4 S.C.R.

A was that despite the enactment of the law, its provisions had not been
implemented. It was urged that even if there is no recognized Leader of
the Opposition in the Lok Sabha, the leader of the single largest opposition
party should be inducted as a part of the Selection Committee. Justice
Ranjan Gogoi speaking for this Court held thus:
B “18. There can be no manner of doubt that the parliamentary
wisdom of seeking changes in an existing law by means of an
amendment lies within the exclusive domain of the legislature and
it is not the province of the Court to express any opinion on the
exercise of the legislative prerogative in this regard. The framing
of the Amendment Bill; reference of the same to the Parliamentary
C 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
D 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
E 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
F law engrafted in the Act and its beneficial effects on the citizenry
of a democratic country, by itself, will not permit the Court to
overstep its jurisdiction. Judicial discipline must caution the Court
against such an approach.”78
58. While assessing the impact of the separation of powers upon
G the present controversy, certain precepts must be formulated. Separation
of powers between the legislature, the executive and the judiciary is a
basic feature of the Constitution. As a foundational principle which is
comprised within the basic structure, it lies beyond the reach of the
constituent power to amend. It cannot be substituted or abrogated. While
78
Id, at page 173
H
KALPANA MEHTA v. UNION OF INDIA 171
[DR. D. Y. CHANDRACHUD, J.]

recognizing this position, decided cases indicate that the Indian Constitution A
does not adopt a separation of powers in the strict sense. Textbook
examples of exceptions to the doctrine include the power of the executive
to frame subordinate legislation, the power of the legislature to punish
for contempt of its privileges and the authority entrusted to the Supreme
Court and High Courts to regulate their own procedures by framing
B
rules. In making subordinate legislation, the executive is entrusted by
the legislature to make delegated legislation, subject to its control. The
rule making power of the higher judiciary has trappings of a legislative
character. The power of the legislature to punish for contempt of its
privileges has a judicial character. These exceptions indicate that the
separation doctrine has not been adopted in the strict form in our C
Constitution. But the importance of the doctrine lies in its postulate that
the essential functions entrusted to one organ of the state cannot be
exercised by the other. By standing against the usurpation of constitutional
powers entrusted to other organs, separation of powers supports the
rule of law and guards against authoritarian excesses. Parliament and
D
the State Legislatures legislate. The executive frames policies and
administers the law. The judiciary decides and adjudicates upon disputes
in the course of which facts are proved and the law is applied. The
distinction between the legislative function and judicial functions is
enhanced by the basic structure doctrine. The legislature is constitutionally
entrusted with the power to legislate. Courts are not entrusted with the E
power to enact law. Yet, in a constitutional democracy which is founded
on the supremacy of the Constitution, 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
F
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 G
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
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172 SUPREME COURT REPORTS [2018] 4 S.C.R.

A the separation of powers prevents the legislature from issuing a mere
declaration that a judgment is erroneous or invalid, the law-making body
is entitled to enact a law which remedies the defects which have been
pointed out by the court. Enactment of a law which takes away the
basis of the judgment (as opposed to merely invalidating it) is permissible
and does not constitute a violation of the separation doctrine. That indeed
B
is the basis on which validating legislation is permitted.
59. This discussion leads to the conclusion that while the separation
of powers, as a principle, constitutes the cornerstone of our democratic
Constitution, its application in the actual governance of the polity is
nuanced. The nuances of the doctrine recognize that while the essential
C functions of one organ of the state cannot be taken over by the other
and that a sense of institutional comity must guide the work of the
legislature, executive and judiciary, the practical problems which arise in
the unfolding of democracy can be resolved through robust constitutional
cultures and mechanisms. The separation doctrine cannot be reduced to
D its descriptive content, bereft of its normative features. Evidently, it has
both normative and descriptive features. In applying it to the Indian
Constitution, the significant precept to be borne in mind is that no institution
of governance lies above the Constitution. No entrustment of power is
absolute.
E G A functional relationship
60. What then does the above analysis tell us about the functional
relationship of the work which is done by parliamentary committees and
the role of the court as an adjudicator of disputes? In assessing the
issue, it must be remembered, that parliamentary committees owe their
F existence to Parliament. They report to Parliament. They comprise of
the members of Parliament. Their work consists of tendering advice to
the legislature. A parliamentary committee does not decide a lis between
contesting disputants nor does it perform an adjudicatory function. A
committee appointed by the House can undoubtedly receive evidence,
including expert evidence, both oral and documentary. A Select Committee
G may be appointed by the House to scrutinize a Bill. When the committee
performs its task, its report is subject to further discussion and debate in
the House in the course of which the legislative body would decide as to
whether the Bill should be enacted into law. The validity of the advice
which is tendered by a parliamentary committee in framing its
H recommendations for legislation cannot be subject to a challenge before
KALPANA MEHTA v. UNION OF INDIA 173
[DR. D. Y. CHANDRACHUD, J.]

a court of law. The advice tendered is, after all, what it purports to be: A
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.
61. Department related standing committees are constituted by
Parliament to oversee the functioning of ministries/departments of B
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. C

62. 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: D

(i) The report of a parliamentary committee may contain a
statement of position by government on matters of policy;
(ii) The report may allude to statements made by persons who
have deposed before the Committee; E
(iii) The report may contain inferences of fact including on the
performance of government in implementing policies and
legislation;
(iv) The report may contain findings of misdemeanor implicating
a breach of duty by public officials or private individuals or an F
evasion of law; or
(v) The report may shed light on the purpose of a law, the social
problem which the legislature had in view and the manner in
which it was sought to be remedied.
63. The use of parliamentary history as an aid to statutory G
construction is an area which poses the fewest problems. In
understanding the true meaning of the words used by the legislature, the
court may have regard to the reasons which have led to the enactment
of the law, the problems which were sought to be remedied and the
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174 SUPREME COURT REPORTS [2018] 4 S.C.R.

A object and purpose of the law. For understanding this, the court may
seek recourse to background parliamentary material associated with the
framing of the law. In his seminal work on the Interpretation of Statutes,
Justice G P Singh notes that the traditional rule of exclusion in English
Courts has over a period of time been departed from in India as well to
permit the court to have access to the historical background in which the
B
law was enacted. Justice G P Singh79 notes:
“The Supreme Court, speaking generally, to begin with, enunciated
the rule of exclusion of Parliamentary history in the way it was
traditionally enunciated by the English Courts, but on many an
occasion, the court used this aid in resolving questions of
C construction. The court has now veered to the view80 that
legislative history within circumspect limits may be consulted by
courts in resolving ambiguities. But the courts still sometimes, like
the English courts, make a distinction between use of a material
for finding the mischief dealt with by the Act and its use for finding
D the meaning of the Act. As submitted earlier this distinction is
unrealistic and has now been abandoned by the House of Lords.”
64. Reports of parliamentary committees may contain a statement
of position by government on matters of policy. There is no reason in
principle to exclude recourse by a court to the report of the committee at
E least 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.
65. In matters involving public interest which come up before the
F 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
G of such discrimination – the feudal and patriarchal structures of Indian
society being among them – public interest litigation has enabled courts
79
Justice G P Singh, P RINCIPLES OF STATUTORY INTERPRETATION (14th edn.) 253.
80
Kesavananda Bharati v. State of Kerala 1973 (4) SCC 225; Tata Power Co. Ltd. v.
Reliance Energy Ltd (2009) 16 SCC 659; Namit Sharma v. Union of India (2013) 1 SCC
H 745.
KALPANA MEHTA v. UNION OF INDIA 175
[DR. D. Y. CHANDRACHUD, J.]

to develop flexible tools of decision making and pursue innovative A
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 remedied.
Public interest litigation has emerged as a powerful tool to provide justice
to the marginalized. In matters involving issues of public interest, courts
B
have been called upon to scrutinize the failure of the state or its agencies
to implement law and to provide social welfare benefits to those for
whom they are envisaged under legislation. Courts have intervened to
ensure the structural probity of the system of democratic governance.
Executive power has been made accountable to the guarantee against
arbitrariness (Article 14) and to fundamental liberties (principally Articles C
19 and 21).
66. Committees of Parliament attached to ministries/departments
of the government perform the function of holding government
accountable to implement its policies and its duties under legislation. The
performance of governmental agencies may form the subject matter of D
such a report. In other cases, the deficiencies of the legislative framework
in remedying social wrongs may be the subject of an evaluation by a
parliamentary committee. The work of a parliamentary committee may
traverse the area of social welfare either in terms of the extent to which
existing legislation is being effectively implemented or in highlighting the
lacunae in its framework. There is no reason in principle why the wide E
jurisdiction of the High Courts under Article 226 or of this Court under
Article 32 should be exercised in a manner oblivious to the enormous
work which is carried out by parliamentary committees in the field. The
work of the committee is to secure alacrity on the part of the government
in alleviating deprivations of social justice and in securing efficient and F
accountable governance. When courts enter upon issues of public interest
and adjudicate upon them, they do not discharge a function which is
adversarial. The constitutional function of adjudication in matters of
public interest is in step with the role of parliamentary committees which
is to secure accountability, transparency and responsiveness in
government. In such areas, the doctrine of separation does not militate G
against the court relying upon the report of a parliamentary committee.
The court does not adjudge the validity of the report nor for that matter
does it embark upon a scrutiny into its correctness. There is a functional
complementarity between the purpose of the investigation by the
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176 SUPREME COURT REPORTS [2018] 4 S.C.R.

A parliamentary committee 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
B
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
C 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.
D 67. There may, however, be contentious matters in the report of a
parliamentary committee in regard to which the court will tread with
circumspection. For instance, the report of the committee may contain a
finding of misdemeanor involving either officials of the government or
private individuals bearing on a violation of law. If the issue before the
court for adjudication is whether there has in fact been a breach of duty
E or a violation of law by a public official or a private interest, the court
would have to deal with it independently and arrive at its own conclusions
based on the material before it. Obviously in such a case the finding by
a Parliamentary Committee cannot constitute substantive evidence before
the court. The parliamentary committee is not called upon to decide a lis
F or dispute involving contesting parties and when an occasion to do so
arises before the court, it has to make its determination based on the
material which is admissible before it. An individual whose conduct has
been commented upon in the report of a parliamentary committee cannot
be held guilty of a violation on the basis of that finding. In Jyoti Harshad
Mehta v The Custodian 81, this Court held that a report of the
G Janakiraman committee could not have been used as evidence by the
Special Court. The court held:
“57. It is an accepted fact that the reports of the Janakiraman
Committee, the Joint Parliamentary Committee and the Inter-
81
(2009) 10 SCC 564
H
KALPANA MEHTA v. UNION OF INDIA 177
[DR. D. Y. CHANDRACHUD, J.]

Disciplinary Group (IDG) are admissible only for the purpose of A
tracing the legal history of the Act alone. The contents of the
report should not have been used by the learned Judge of the
Special Court as evidence.”82
68. Section 57 of the Indian Evidence Act 1872 speaks of facts of
which the court must take judicial notice. Section 57 is comprised in B
Part II (titled ‘On proof’). Chapter III deals with facts which need not
be proved. Section 57(4) provides as follows:
“57. Facts of which Court must take judicial notice – The Court
shall take judicial notice of the following facts:-
*** C

(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.”
D
In The Sole Trustee, Lok Shikshana Trust v The
Commissioner of Income Tax, Mysore83, a three judge Bench of
this Court, while construing Section 57(4) made a distinction between
the fact 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 E
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 F
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
G
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,
82
Id, at page 582
83
(1976) 1 SCC 254
H
178 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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 1935 PC
34 : 153 IC 1] ; the Englishman Ltd. v. Lajpat Rai, ILR 37 Cal
760: 6 IC 81: 14 CWN 945.”84
B A statement made by the Finance Minister while proposing
amendment could, it was held, be taken judicial notice of. Judicial notice
would be taken of the fact that “such a statement of the reason was
given in the course of such a speech”.
In Onkar Nath v The Delhi Administration85,another Bench
C of three judges elaborated upon Section 57(4). Justice YV Chandrachud,
speaking for the Court, held thus:
“6. One of the points urged before us is whether the courts below
were justified in taking judicial notice of the fact that on the date
when the appellants delivered their speeches a railway strike was
D imminent and that such a strike was in fact launched on May 8,
1974. Section 56 of the Evidence Act provides that no fact of
which the Court will take judicial notice need be proved. Section
57 enumerates facts of which the Court “shall” take judicial notice
and states that on all matters of public history, literature, science
or art the Court may resort for its aid to appropriate books or
E documents of reference. The list of facts mentioned in Section 57
of which the Court can take judicial notice is not exhaustive and
indeed the purpose of the section is to provide that the
Court shall take judicial notice of certain facts rather than exhaust
the category of facts of which the Court may in appropriate cases
F take judicial notice. Recognition of facts without formal proof is a
matter of expediency and no one has ever questioned the need
and wisdom of accepting the existence of matters which are
unquestionably within public knowledge. (See Taylor, 11th Edn.,
pp. 3-12; Wigmore, Section 2571, footnote; Stephen’s Digest, notes
to Article 58; Whitley Stokes’ Anglo-Indian Codes, Vol. II, p.
G 887.) Shutting the judicial eye to the existence of such facts and
matters is in a sense an insult to commonsense and would tend to
reduce the judicial process to a meaningless and wasteful ritual.
84
Id, at page 272
85
(1977) 2 SCC 611
H
KALPANA MEHTA v. UNION OF INDIA 179
[DR. D. Y. CHANDRACHUD, J.]

No court therefore insists on formal proof, by evidence, of notorious A
facts of history, past or present. The date of poll, the passing
away of a man of eminence and events that have rocked the
nation need no proof and are judicially noticed. Judicial notice, in
such matters, takes the place of proof and is of equal force.” 86
In Baburao Alias P B Samant v Union of India87,the court B
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 C
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.”88
These observations were in the context, specifically, of the D
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 E
judicial notice under Section 57.
H Conclusion
69. The issue which has been referred to the Constitution Bench
is whether the report of a Parliamentary Standing Committee can be F
relied upon in a proceeding under Article 32 or Article 136 of the
Constitution. Allied to this is whether parliamentary privileges and the
doctrine of separation of powers (shades of which find expression in the
often-used phrase ‘the delicate balance’) impose restraints on the ability
of the court to seek recourse to parliamentary reports.
G
70. In finding an answer to the questions in reference, this Court
must of necessity travel from a literal and perhaps superficial approach,
to an understanding of the essence of what the Constitution seeks to
86
Id, at page 614
87
1988 (Supp.) SCC 401
88
Id, at page 414 H
180 SUPREME COURT REPORTS [2018] 4 S.C.R.

A achieve. At one level, our Constitution has overseen the transfer of political
power from a colonial regime to a regime under law of a democratic
republic. Legitimizing the transfer of political power is one, but only one
facet of the Constitution. To focus upon it alone is to miss a significant
element of the constitutional vision. That vision is of about achieving a
social transformation. This transformation which the Constitution seeks
B
to achieve is by placing the individual at the forefront of its endeavours.
Crucial to that transformation is the need to reverse the philosophy of
the colonial regime, which was founded on the subordination of the
individual to the state. Liberty, freedom, dignity and autonomy have
meaning because it is to the individual to whom the Constitution holds
C out an assurance of protecting fundamental human rights. The
Constitution is about empowerment. The democratic transformation to
which it aspires places the individual at the core of the concerns of
governance. For a colonial regime, individuals were subordinate to the
law. Individuals were subject to the authority of the state and their well-
being was governed by the acceptance of a destiny wedded to its power.
D
Those assumptions which lay at the foundation of colonial rule have
undergone a fundamental transformation for a nation of individuals
governed by the Constitution. The Constitution recognises their rights
and entitlements. Empowerment of individuals through the enforcement
of their rights is the essence of the constitutional purpose. Hence, in
E understanding the issues which have arisen before the Court in the present
reference, it is well to remind ourselves that since the Constitution is
about transformation and its vision is about empowerment, our reading
of precepts drawn from a colonial past, 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
F
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.
71. A distinguished South African Judge, Albie Sachs has spoken
G of the importance of understanding the value of constitutional
transformation. In his book titled ‘The Strange Alchemy of Life and
Law’89, explaining the role of the constitutional court, Sachs has this to
say:
89
Justice Albie Sachs, The Strange Alchemy of Life and Law (Oxford University Press
H 2009) pages 32-33.
KALPANA MEHTA v. UNION OF INDIA 181
[DR. D. Y. CHANDRACHUD, J.]

“It is difficult to analyse the impact that court decisions have on A
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
B
scrutiny – conducted transparently and in the light of internationally
accepted values of fairness and justice – was a telling rebuttal of
mercenarism and violence, whether from or against the State. It
responded in a practical way to the immediate issues, and at the
same time induced governments, judiciaries, and law enforcement
agencies in three countries to engage with each other and carefully C
consider their powers and responsibilities under the international
law. It reaffirmed to the South African public that we were living
in a constitutional democracy in which all exercises of power
were subject to constitutional control. It said something
important about the kind of country in which we lived and about
D
the importance of principled and reasoned debate. It underlined
that we had moved from a culture of authority and
submission to the law, to one of justification and rights under
the law.” (emphasis supplied)
72. In India, no less than in South Africa it is important to realise
that citizens live in a constitutional democracy in which every exercise E
of power is subject to constitutional control. Every institution of the State
is subject to the Constitution. None lies above it. The most important
feature of Sachs’ vision relevant to our Constitution is that Indian society
must move “from the culture of authority and submission to the law, to
one of justification and rights under the law”. F
73. Once we place the fulfilment of individual rights and human
freedoms at the forefront of constitutional discourse, the resolution of
the present case presents no difficulty. Individuals access courts to remedy
injustice. As institutions which are committed to the performance of a
duty to facilitate the realisation of human freedom, High Courts as well G
as this Court are under a bounden obligation to seek and pursue all
information on the causes of injustice. Where the work which has been
performed by a coordinate constitutional institution – in this case a
Parliamentary Committee, throws light on the nature of the injustice or
its causes and effects, constitutional theory which has to aid justice cannot
H
182 SUPREME COURT REPORTS [2018] 4 S.C.R.

A lead us to hold that the court must act oblivious to the content of the
report. History and contemporary events across the world are a reminder
that black-outs of information are used as a willing ally to totalitarian
excesses of power. They have no place in a democracy. Placing reliance
on the report of a Parliamentary Committee does not infringe
parliamentary privilege. No Member of Parliament is sought to be made
B
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
C 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.
74. Parliamentary Committees are an intrinsic part of the process
D 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
E guaranteed by the Constitution and by statute. Access to justice as a
means of securing fundamental freedoms and realizing socio-economic
entitlements is complementary to the work of other organs of the State.
The modern doctrine of separation of powers has moved away from a
‘one organ – one function’ approach, to a more realistic perspective
F which recognizes the complementarity in the work which is performed
by institutions of governance. Judicial review is founded on the need to
ensure accountable governance in the administration of law as an
instrument of realizing the rights guaranteed by the Constitution. If the
function of judicial review in facilitating the realization of socio-economic
rights is construed in the context of the modern notion of separation of
G powers, there is no real conflict between the independence of the judicial
process and its reliance on published reports of Parliamentary
Committees. Ultimately it is for the court in each case to determine the
relevance of a report to the case at hand and the extent to which reliance
can be placed upon it to facilitate access to justice. Reports of
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KALPANA MEHTA v. UNION OF INDIA 183

Parliamentary Committees become part of the published record of the A
State. As a matter of principle, there is no reason or justification to
exclude them from the purview of the judicial process, for purposes
such as understanding the historical background of a law, the nature of
the problem, the causes of a social evil and the remedies which may
provide answers to intractable problems of governance. The court will
B
in the facts of a case determine when a matter which is contentious
between the parties would have to be adjudicated upon independently
on the basis of the evidence adduced in accordance with law.
In the circumstances, the reference is answered by holding that:
(i) As a matter of principle, there is no reason why reliance upon C
the report of a Parliamentary Standing Committee cannot be placed in
proceedings under Article 32 or Article 136 of the Constitution;
(ii) Once the report of a Parliamentary Committee has been
published, reference to it in the course of judicial proceedings will not
constitute a breach of parliamentary privilege; D
(iii) The validity of the report of a Parliamentary Committee cannot
be called into question in the court. No Member of Parliament or person
can be made liable for what is stated in the course of the proceedings
before a Parliamentary Committee or for a vote tendered or given; and
(iv) When a matter before the court assumes a contentious E
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.
75. The issues framed for reference are accordingly answered.
76. The proceedings may now be placed before the Hon’ble Chief
F
Justice for assignment of the case for disposal.

ASHOK BHUSHAN, J. 1. 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. G
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.
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184 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 2. 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. During
course of hearing of these Writ Petitions, learned senior counsel of
respondent No. 8 (M.S.D. Pharmaceuticals Private Limited) raised
B
objection regarding admissibility & consideration of the Parliamentary
Committee Report, considering which objections following two questions
have been referred to be answered:
“(i) Whether in a litigation filed before this Court either under
Article 32 or Article 136 of the Constitution of India, the Court
C can refer to and place reliance upon the report of the
Parliamentary Standing Committee?
(ii) Whether such a Report can be looked at for the purpose
of reference and, if so, can there be restrictions for the
purpose of reference regard being had to the concept of
D parliamentary privilege and the delicate balance between the
constitutional institutions that Articles 105, 121 and 122 of
the Constitution conceive?”
3. The background facts as disclosed by the two writ petitions
giving rise to the above two questions need to be noted now:
E
WRIT PETITION (C) NO.558 OF 2012
The Writ Petition as a Public Interest Litigation has been filed by
three petitioners, petitioner Nos.1 and 2 claim to be working for women
health whereas the Petitioner No.3 is a registered Society working with
F women organisations to help them to improve their lives and livelihood
and to seek justice for marginalised communities. In July, 2009, the
petitioners became aware of a so called demonstration project work
being carried out in States of Andhra Pradesh and Gujarat by PATH
(respondent No.6), a US based NGO along with the Indian Council of
Medical Research(ICMR) and Governments of Andhra Pradesh and
G Gujarat. In the above project about 32,000 young adolescent girls in the
age group of 10-14 years were to be administered HPV (Human
Papilloma Virus) vaccines purported to be effective in preventing cervical
cancer. HPV vaccine, namely, “Gardasil” is manufactured by respondent
No.7- Glaxosmithkline Asia Pvt. Ltd. and “Cervarix” by respondent No.8-
M.S.D. Pharmaceuticals Private Limited, licenced in India only in July,
H
KALPANA MEHTA v. UNION OF INDIA 185
[ASHOK BHUSHAN, J.]

2008 and September, 2008 respectively by Drug Controller General of A
India.
4. In July, 2009 vaccine Gardasil in Khammam District in Andhra
Pradesh was administered. Few girl childs died. Health activists wrote
to the Ministry of Health pointing out concern about irregularities and
health risk of the HPV vaccine. Women organisation sent representations B
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, C
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 D
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 E
the respondent Nos.6 to 8. Various directions and recommendations were
issued by the Committee. Again a detailed report, namely, 81st Report
on “action taken by the Government on the recommendations/
observations contained in the 72nd Report on the alleged irregularities in
the conduct of studies using Human Papilloma Virus(HPV) vaccine by F
PATH” in India was submitted to Rajya Sabha on 23rd December, 2014
and also laid on the table of Lok Sabha on 23rd December, 2014. Both
the reports have been brought on record.
Writ Petition (C) No. 921 of 2013
5. The Writ Petition as a Public Interest Litigation has been filed G
by petitioners of which petitioner Nos. 1 and 2 are public trusts and
petitioner Nos. 3 and 4 are registered societies. The petitioners have
questioned the methods in which clinical trials for medicines including
vaccines are taking place in this country to the disadvantage of vulnerable
groups in the society including the poor, tribal, women and children. The H
186 SUPREME COURT REPORTS [2018] 4 S.C.R.

A facts and pleadings in the writ petition are on the line of facts and
pleadings as contained in Writ Petition (c) No. 558 of 2012, hence are
not repeated for brevity. Petitioners have prayed for various reliefs
including declaration that HPV Vaccine Observational Study
Demonstration Project was a Phase IV clinical trial within the meaning
of various Rules in Drugs and Cosmetics Rules, 1945. Petitioners have
B
made several prayers including the prayers for grant of compensation
and direction for investigation by Special Investigation Team of various
offences committed by respondent Nos. 2 to 8.
6. In both the writ petitions, most of materials including fact finding
enquiry conducted by the petitioner No.1 in Writ Petition (C) No. 921 of
C 2013(PIL-W), newspapers reports, articles, representations,
correspondence have been referred to and relied. Apart from other
materials, reference and reliance on 72nd Report presented on 30th August,
2013 and 81st Report presented on 23rd December, 2014 to Rajya Sabha
have also been placed.
D 7. A two Judge Bench of this Court while hearing the writ petitions
has posed several questions and issued various directions. In this context
the Court passed various directions on 12.08.2014, 13.01.2015 and
17.11.2015.
8. When the matter was heard on 18.11.2015 by two Judge Bench
E this Court Stated : “Be it noted, a substantial issue in law has arisen 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
F referred two questions as noted above to be answered by a Constitution
Bench.
SUBMISSIONS
9. We have heard Shri Colin Gonsalves, learned senior advocate
for petitioner in Writ Petition (C) No.558/2012 and Shri Anand Grover,
G 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.
H
KALPANA MEHTA v. UNION OF INDIA 187
[ASHOK BHUSHAN, J.]

10. Shri Salve submits that Parliamentary Committee Report can A
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 House. The Members of Parliament as well as those
who appear before the Parliamentary Committee are fully protected by
B
the legislative privileges of the members as well as of the Houses. Article
105 sub-clause (2) of the Constitution of India provides that 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. He further submits that as per Article 105 sub-clause (3) the
powers, privileges and immunities of each House of Parliament, and of C
the members and the committees of each House, is same as of those of
the House of Commons as it exists on 26th November, 1950. Article 105
sub-clause (4) extends the privileges as referred to in clauses (1), (2)
and (3) to all persons who have the right to speak in, and otherwise to
take part in the proceedings of any House of Parliament or any committee
D
thereof. Evidence led in a Court cannot be criticised. Same principles
can apply with regard to evidence taken by a Parliamentary Committee.
A committee of Parliament is part of Parliament.
11. The principal submission which has been canvassed by Shri
Salve is that there being legislative privilege of all acts done in the
Parliament including report of Parliamentary Committee, the report cannot E
be challenged in a Court of Law. He submits that reliance of a
Parliamentary Committee Report also involves a challenge to the report
by other parties. No adjudication can be entertained by this Court with
regard to a Parliamentary Committee Report, hence reliance placed by
the petitioner on the Parliamentary Committee Report is misplaced. F
12. Relying on Article IX of Bill of Rights 1688, Shri Salve submits
that it confers on ‘proceedings in Parliament’ protection from being
‘impeached or questioned’ in any ‘court or place out of Parliament’. He
submits that Indian Parliament is conferred the same privileges which
are enjoyed by the House of Commons, hence Parliamentary Committee G
Report can neither be relied nor questioned in any Court of Law. Shri
Salve referred to various English cases and several judgments of this
Court which shall be referred to while considering the submissions in
detail.

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188 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 13. Shri K.K. Venugopal, learned Attorney General also contends
that Parliamentary Reports cannot be relied in Court. He submits that
although there 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
B
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
C 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-
D
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 Section 57. He submits that by Adaptation Order various words which
were earlier used in Evidence Act, 1872 were changed after adoption of
Constitution which cannot be treated to be an act done by conscious
E deliberation of Legislature. He submits that historical facts as well as
statement of Minister in Parliament can be used with which there cannot
be any quarrel. He, however, submits that inferences in Parliamentary
Committee Report are not acceptable. He submits that when any litigant
wants to prove a fact, he has to search material and produce evidence
and he cannot be allowed to take a shortcut by placing reliance on the
F
Parliamentary Committee Report. Parliamentary Committee Report, is,
in a manner, a speech. Article 105 of the Constitution does not make
any distinction with reports which can be termed to as Social Welfare
Reports or other kinds of reports. He submits that there is total bar in
looking into the Reports of Parliament based on separation of power and
G express provisions of Article 105(2) and 105(4) of the Constitution of
India. The very fact that Speaker can say ‘no’ with regard to any
parliamentary material, it has to be assumed that they operate as total
bar on use of parliamentary material as evidence. The protection which
is extended to a Member of Parliament is also extended to the
Parliamentary proceedings and Parliamentary reports.
H
KALPANA MEHTA v. UNION OF INDIA 189
[ASHOK BHUSHAN, J.]

14. Shri Colin Gonsalves, learned senior counsel appearing for A
the petitioner submits that the petitioner does not intend to challenge any
part of the Parliamentary Committee Report. The Writ Petitioner seeks
nothing which may give rise to any question of breach of Parliamentary
privileges. The writ petitioner is not asking this Court to take any facts
stated in Parliamentary Report to be conclusive except which is
B
permissible under Section 57 of Evidence Act, 1872. As per the Evidence
Act, 1872, the Parliamentary proceedings are public documents which
are admissible in evidence. The petitioner does not ask for issuing any
mandamus to enforce the Parliamentary Committee Report. The cases
cited by Shri Harish Salve in support of his submissions relate to breach
of privileges of members of Parliament whereas present is not a case C
involving any breach of any privileges of a member of Parliament. Neither
any question is being raised in the Writ Petition questioning any action or
conduct of any member 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
D
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.
15. 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 E
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 F
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.
16. The 72nd and 81st Parliamentary Committee Reports play a G
very important role since they unearth the events of the illegal vaccination
done on poor and malnourished young tribal girls and further it has
commented adversely on the role of Government agencies such as ICMR
and DGCI and the State of Andhra Pradesh and Gujarat. The Government

H
190 SUPREME COURT REPORTS [2018] 4 S.C.R.

A officials had appeared before the Parliamentary Committee and admitted
several wrong doings.
17. Shri Anand Grover, learned senior advocate appearing for
petitioners in Writ Petition (C) No.921 of 2013 has adopted most of the
submissions of Shri Colin Gonsalves but has raised certain additional
B submissions. Shri Grover submits that truth and contents of documents
are two entirely different things. When document is admitted what is
proved is document and contents and not the truth. He submits that
there is no question of challenging the findings of the Parliamentary
Committee’s Report nor the reports are being questioned in this Court.
Shri Grover has also referred to several English cases as well as
C judgments of Australian High Court, U.S. Supreme Court and of this
Court. Referring to Section 16(3) of the Australian Parliamentary
Privileges Act 1987, Shri Grover submits that law as applicable in Australia
by virtue of Section 16(3) is not applicable in India nor has been accepted
as law applicable in United Kingdom. He submits that Parliamentary
D Committee Report which is a measure of social protection should be
looked into by the Court while rendering justice to the common man
especially in Public Interest Litigation.
18. Shri Grover further submits that Parliamentary Committee
Reports can be relied only when they are published and becomes a
E public document. He submits that statements can be looked into from
the Parliamentary Committee Report but not the inferences and findings.
The Parliamentary Committee Reports have been obtained from the
House and no kind of privilege is involved.
19. Shri Shyam Divan, learned senior advocate appearing for PATH
F submits that PATH is a non-profit body operating in area of health.
Referring to Section 57 of the Evidence Act, Shri Divan Submits that
sub-section (4) of Section 57 uses the phrase ‘course of proceeding’.
He submits that the expression ‘course of proceeding’ does not
comprehend the Parliamentary reports. He submits that when in this
Court anyone traverses or controverts a Parliamentary Committee
G 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
H
KALPANA MEHTA v. UNION OF INDIA 191
[ASHOK BHUSHAN, J.]

has challenged the veracity of the findings of the Parliamentary Standing A
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
B
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 criminal
and civil in any court including Writ Petition or Public Interest Litigation. C
20. Shri Gourab Banerji, learned senior advocate, replying the
submissions of Shri Colin Gonsalves and Shri Anand Grover, submits
that recommendations and conclusions of Parliamentary Committee
Reports cannot be relied. A moment there is a fact finding in report, it
cannot be looked into. D
21. We have considered above submissions and perused the record.
For answering the two questions referred to this Constitution Bench, as
noted above, we need to consider the following issues:
a. Whether by accepting on record a Parliamentary Standing
Committee’s Report by this Court in a case under Article 32 E
or 136, any privilege of Parliament is breached.
b. In the event, a Parliamentary Standing Committee’s Report
can be accepted as an evidence, what are the restrictions in
its reference and use as per the parliamentary privileges
enjoyed by the Legislature of this country. F
c. Whether in traversing and questioning the reports, the
private respondents may invite a contempt of House.
22. The above issues being inter-connected, we proceed to examine
all the issues together. While considering the above issues, we have
G
divided our discussion in different sub-heads/ topics for overall
understanding of parliamentary privileges enjoyed by the Indian
Legislature.

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192 SUPREME COURT REPORTS [2018] 4 S.C.R.

A A. PARLIAMENTARY PRIVILEGES
23. The origin and evolution of parliamentary privilege is traceable
from High Court of British Parliament. In the early period of British
History, the High Court of Parliament assisted the Crown in his judicial
functions. The High Court of Parliament started sitting in two parts i.e.
B House of Lords and House of Commons. Gradually, both the Houses
claimed various privileges which were recognised. Some of the privileges
were claimed by both the Houses as rights from ancient times and some
of the privileges were statutorily recognised. A significant parliamentary
privilege is recognised and declared by Article IX. Bill of Rights, 1688
which conferred on ‘proceedings in Parliament protection from being
C ‘impeached’ or ‘questioned’ in any court or place out of Parliament’. By
the end of 19th Century most of the parliamentary privileges of House of
Commons were firmly established and recognised by the Courts also.
24. Erskine May in his treaties ‘Parliamentary Practice’,
Twenty-fourth Edition’ has elaborately dealt with the privileges of
D 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
E 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.”
F 25. 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:
G “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 rights and immunities, such as the power to
punish for contempt and the power to regulate its own
H
KALPANA MEHTA v. UNION OF INDIA 193
[ASHOK BHUSHAN, J.]

constitution, belong primarily to each House as a collective A
body, for the protection of its Members and the vindication
of its own authority and dignity. Fundamentally, however, it
is only as a means to the effective discharge of the collective
functions of the House that the individual privileges are
enjoyed by Members. The Speaker has ruled that
B
parliamentary privilege is absolute.
When any of these rights and immunities is disregarded or
attacked, the offence is called a breach of privilege, and is
punishable under the law of Parliament. Each House also
claims the right to punish contempts, that is, actions which,
while not breaches of any specific privilege, obstruct or C
impede it in the performance of its functions, or are offences
against its authority or dignity, such as disobedience to its
legitimate commands or libels upon itself, its Members or its
officers. The power to punish for contempt has been judicially
considered to be inherent in each House of Parliament not as D
a necessary incident of the authority and functions of a
legislature (as might be argued in respect of certain privileges)
but by virtue of their descent from the undivided High Court
of Parliament and in right of the lex et consuetudo
parliamenti.”
E
26. The Halsbury’s Laws of England, Fifth Edition Vol. 78, while
tracing the ‘origin and scope of privileges’, states following:
“1076. Claim to rights and privileges. The House of Lords
and the House of Commons claim for their members, both
individually and collectively, certain rights and privileges F
which are necessary to each House, without which they could
not discharge their functions, and which exceed those
possessed by other bodies and individuals. In 1705 the House
of Lords resolved that neither House had power to create any
new privilege and when this was communicated to the
Commons, that House agreed. Each House is the guardian of G
its own privileges and claims to be the sole judge of any matter
that may arise which in any way impinges upon them, and, if
it deems it advisable, to punish any person whom it considers
to be guilty of a breach of privilege or a contempt of the
House.” H
194 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 27. The privileges of the Indian Legislatures have also gradually
developed alongwith the progress in the constitutional development 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.
B
28. 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
C 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.
29. Article 105 of the Constitution of India deals with ‘powers,
privileges and immunities of Parliament and its Members whereas Article
D 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. Article 105 of Constitution of India as it exists,
provides as follows:
E “105. Powers, privileges, etc, of the Houses of Parliament
and of the Members and committees thereof.-
(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.
F
(2) No member of Parliament shall be liable to any proceedings
in any court in respect of any thing 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,
G 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,
H
KALPANA MEHTA v. UNION OF INDIA 195
[ASHOK BHUSHAN, J.]

[shall be those of that House and of its members and committees A
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 B
proceedings of, a House of Parliament or any committee
thereof as they apply in relation to members of Parliament.”
30. Two amendments were made in Article 105 sub- clause (3)
i.e. by Constitution (Forty Second and Forty Fourth Amendment). Article
105 sub-clause (3) in its original form was as follows: C
“Article 105(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 the House of Commons of the D
Parliament of the United Kingdom, and of its members and
committees, at the commencement of this Constitution.”
31. Sub-clause (1) of Article 105 of the Constitution of India gives
constitutional recognition to ‘freedom of speech’ in Parliament. Sub-
clause (2) of Article 105 enumerates the privileges and immunities of E
Members of Parliament. There is absolute protection to a Member of
Parliament against any proceeding in any court, in respect of anything
said or vote given by him in Parliament 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 F
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 G
in the Parliament Committee’s Report.
32. 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
H
196 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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 of the Constitution
of India.
B 33. The Constitution Bench in P. V. Narsimha Rao vs. State (CBI/
SPE), (1998) 4 SCC 626 had elaborately considered Article 105 of the
Constitution of India. In paragraph 28 and paragraph 29 of the judgment
following has been stated:
“28. Clause (2) confers immunity in relation to proceedings
C in courts. It can be divided into two parts. In the first part
immunity from liability under any proceedings in any court is
conferred on a Member of Parliament in respect of anything
said or any vote given by him in Parliament or any committee
thereof. In the second part such immunity is conferred on a
person in respect of publication by or under the authority of
D either House of Parliament of any report, paper, votes or
proceedings. This immunity that has been conferred under
clause (2) in respect of anything said or any vote given by a
Member in Parliament or any committee thereof and in respect
of publication by or under the authority of either House of
E Parliament of any report, paper, votes or proceedings, ensures
that the freedom of speech that is granted under clause (1) of
Article 105 is totally absolute and unfettered. (See: Legislative
Privileges case (1997) 66 DLT 618 (Del) pp. 441, 442.)
29. Having secured the freedom of speech in Parliament to
F the Members under clauses (1) and (2), the Constitution, in
clause (3) of Article 105, deals with powers, privileges and
immunities of the House of Parliament and of the Members
and the committees thereof in other respects. The said clause
is in two parts. The first part empowers Parliament to define,
by law, the powers, privileges and immunities of each House
G of Parliament and of the Members and the committees of each
House. In the second part, which was intended to be
transitional in nature, it was provided that until they are so
defined by law the said powers, privileges and immunities
shall be those of the House of Commons in the United Kingdom
H and of its Members and committees at the commencement of
KALPANA MEHTA v. UNION OF INDIA 197
[ASHOK BHUSHAN, J.]

the Constitution. This part of the provision was on the same A
lines as the provisions contained in Section 49 of the
Australian Constitution and Section 18 of the Canadian
Constitution. Clause (3), as substituted by the Forty-fourth
Amendment of the Constitution, does not make any change in
the content and it only seeks to omit future reference to the
B
House of Commons of Parliament in 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
34. What are the privileges of the House of Commons which are C
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.
35. While dealing with the privileges of Parliament Erskine May
in his treatise ‘Parliamentary Practice’ enumerates the following D
privileges:
1. Freedom of Speech
2. Freedom from Arrest
3. Freedom of Access
E
4. Favourable Construction
5. Privileges with respect to membership of the House
6. Power of commitment for breach of privilege or contempt.
36. Halsbury’s Laws of England in Fifth Edition Vol. 78, while F
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
G
3. Contempts
4. Freedom from Arrest
5. Protection of witnesses and others before Parliament
6. Power to exclude the public.
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198 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 37. The main privileges which are claimed by the House of
Commons were noticed by the Constitution Bench of this Court in Special
Reference No. 1 of 1964 (UP Assembly Case) AIR 1965 SC 745 in
para 73 and 74 which are quoted as below:
“73. Amongst the other privileges are: the right to exclude
B strangers, the right to control publication of debates and
proceedings, the right to exclusive cognizance of proceedings
in Parliament, the right of each House to be the sole judge of
the lawfulness of its own proceedings, and the right implied
to punish its own members for their conduct in Parliament
Ibid, p. 52-53.
C
74. Besides these privileges, both Houses of Parliament were
possessed of the privilege of freedom from arrest or
molestation, and from being impleaded, which was claimed
by the Commons on ground of prescription....”
D 38. M. N. Kaul and S. L. Shakdher in ‘Practice & Procedure
of Parliament’, Seventh Edition published by Lok Sabha Secretariat
have enumerated ‘Main privileges of Parliament’ to the following effect:
“Main Privileges of Parliament
Some of the privileges of Parliament and of its members and
E committees are specified in the Constitution, certain statutes
and the Rules of Procedure of the House, while others continue
to be based on precedents of the British House of Commons
and on conventions which have grown in this country.
Some of the more important of these privileges are:
F
(i) Privileges specified in the Constitution:
Freedom of speech in Parliament Art. 105(1).
Immunity to a member from any proceedings in any court in
respect of anything said or any vote given by him in
G Parliament or any committee thereof Art. 105(2).
Immunity to a person from proceedings in any court in respect
of the publication by or under the authority of either House
of Parliament of any report, paper, votes or proceedings Ibid.
Prohibition on the courts to inquire into proceedings of
H Parliament Art. 122.
KALPANA MEHTA v. UNION OF INDIA 199
[ASHOK BHUSHAN, J.]

Immunity to a person from any proceedings, civil or criminal, A
in any court in respect of the publication 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. This immunity is also available in relation
to reports or matters broadcast by means of wireless telegraphy
B
Art. 361 A.
(ii) Privileges specified in 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 s. C
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 D
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.
E
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
F
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 permission of the House and without the consent G
of the member whose attendance is required 6R (CPR-2LS).
In addition to the above-mentioned privileges and immunities,
each House also enjoys certain consequential powers
necessary for the protection of its privileges and immunities.
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200 SUPREME COURT REPORTS [2018] 4 S.C.R.

A These powers are:
to commit persons, whether they are members or not, for
breach of privilege or contempt of the House P.D., 1961, Vol.
V-2, Pt. III, pp. 51-52 (Rajasthan Vidhan Sabha Case, 10
April 1954) 1974, Vol. XIX-2, pp. 42-43 and 1975, Vol. XX-1,
B pp. 78 (shouting of slogans and carrying of arms by ‘visitors
to Lok Sabha); Homi D. Mistry v. Nafisul Hassan – the Blitz
Case, I.L.R. 1957, Bombay 218; the Searchlight Case, A.I.R.
1959 S.C. 395; C. Subramaniam’s Case, A.I.R. 1968, Madras
10.
C to compel the attendance of witnesses and to send for
persons, papers and records Rules 269 and 270, Harendra
Nath Barua v. Dev Kant Barua, A.I.R. 1958, Assam 160.
to regulate its procedure and the conduct of its business
Art. 118(1)
D to prohibit the publication of its debates and proceedings,
The Searchlight Case and to exclude strangers Rule 387.”
39. The privileges of Indian Parliament, which have been
enumerated above, are the privileges which were enjoyed by the British
House of Commons. From the parliamentary privileges as enumerated
E above, it is clear that there is a complete immunity to the Members of
Parliament from any proceeding for anything said in any committee of
the Parliament. Present is not a case where any proceedings are
contemplated against any Member of Parliament for anything which
has been said in a report of a Committee, involving a breach of any
F privilege under sub-clause (2) of Article 105 of the Constitution of India.
40. The question to be considered, is as to whether, there is any
breach of privileges of Parliament in accepting, referring and relying on
a Parliamentary Committee Report by this Court.
C. THE ROLE OF PARLIAMENTARY COMMITTEES
G 41. The Parliament is legislative wing of the Union. The Council
of Ministers headed by the Prime Minister is collectively responsible to
the House of the People. The role of Parliament is thus not confined to
mere transacting legislative business. In the representative parliamentary
democracy, the role of Parliament has immensely increased and is pivotal
H for the governance of the country.
KALPANA MEHTA v. UNION OF INDIA 201
[ASHOK BHUSHAN, J.]

42. F. W. Maitland in the ‘Constitutional History of England’ A
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 B
king are expected to be in parliament and to answer questions,
and the House may be asked to condemn their conduct..... “
43. 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 C
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, D
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 many a quarter. “
44. The business of Parliament is transacted in accordance with E
the rules of procedure as framed under Article 118 of the Constitution of
India. Both the Houses of the Parliament have made rules for regulating
its procedure and conduct of its business. The Rajya Sabha has framed
rules, namely, ‘The Rules of Procedure and Conduct of Business in the
Council of States(Rajya Sabha)’, which were brought into force w.e.f.
01.07.1964. The Rules of Procedure and Conduct of Business in Lok F
Sabha were framed and published in the Gazette of India Extra-ordinary
on 17.05.1952.
45. Various committees of both Rajya Sabha and Lok Sabha are
entrusted with enormous duties and responsibilities in reference to the
functions of the Parliament. Maitland in ‘Constitutional History of G
England’ while referring to the committees of the Houses of British
Parliament noticed the functions of the committees in the following words:
“.....Then again by means of committees the Houses now
exercise what we may call an inquisitorial power. If anything
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202 SUPREME COURT REPORTS [2018] 4 S.C.R.

A is going wrong in public affairs a committee may be appointed
to investigate the matter; witnesses can be summoned to give
evidence on oath, and if they will not testify they can be
committed for contempt. All manner of subjects concerning
the public have of late been investigated by parliamentary
commissions; thus information is obtained which may be used
B
as a basis for legislation or for the recommendation of
administrative reforms.”
46. Chapter IX of the Rajya Sabha Rules dealing with the
legislation provides for Select Committees on Bills, procedure of the
presentation after report of the Select / Joint Committee. The Rules
C provide for various committees including Committee on Subordinate
Legislation, Committee on Government Assurances and other
committees. Chapter XXII deals with ‘Departmental Related
Parliamentary Standing Committees’. Rule 268 which provides for
‘Departmental Select Committees’ is as follows:
D “268. Department-related Standing Committees
(1) There shall be Parliamentary Standing Committees of the
Houses (to be called the Standing Committees) related to
Ministries/Departments.

E (2) Each of the Standing Committees shall be related to the
Ministries/Departments as specified in the Third Schedule:
Provided that the Chairman and the Speaker, Lok Sabha
(hereinafter referred to as the Speaker), may alter the said
Schedule from time to time in consultation with each other.”
F 47. 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:-
G
(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/
H
KALPANA MEHTA v. UNION OF INDIA 203
[ASHOK BHUSHAN, J.]

Departments, referred to the Committee by the Chairman or A
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 B
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.” C

48. Rule 277 provides that the Report of the Standing Committee
shall have persuasive value. Schedule III of the Rules deals with the
‘Allocation of various Ministries/Departments related to Parliamentary
Standing Committee’. At Item No. 7 is ‘Committee on Health and Family
Welfare’ which relates to Department of Health and Family Welfare. D
49. Present is a case where Parliamentary Standing Committee
which has submitted the report is the Parliamentary Standing Committee
on Health and Family Welfare. M. N. Kaul and S. L. Shakdher in
their treatise on ‘Practice and Procedure of Parliament’ published
by Lok Sabha Secretariat, dealing with the business of Committees stated E
the following:
“Parliament transacts a great deal of its business through
Committees. These Committees are appointed to deal with
specific items of business requiring expert or detailed
consideration. The system of Parliamentary Committees is F
particularly useful in dealing with matters which, on account
of their special or technical nature, are better considered in
detail by a small number of members rather than by the House
itself. Moreover, the system saves the time of the House for
the discussion of important matters and prevents Parliament
G
from getting lost in details and thereby losing hold on matters
of policy and broad principles.”
50. The reports which are submitted by the Departmental
Parliamentary Standing Committees are reports of matters entrusted to
it by Parliament, by the Speaker. Parliament to which Council of Ministers
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204 SUPREME COURT REPORTS [2018] 4 S.C.R.

A are responsible, supervises the various works done by different
Departments of the Government. Apart from the supervision, the
committees also make recommendations and issue directions. Directions
and recommendations are to be implemented by different Government
Departments and action taken reports are submitted before the
Parliament to be considered by Departmental Standing Committees. The
B
functions of the committees thus, play an important role in functioning of
the entire Government which is directly related to the welfare of the
people of the country.
D. PUBLICATION OF PARLIAMENTARY REPORTS
C 51. The Reports of the Parliamentary Standing Committees and
other decisions and resolutions of the Parliament are published under
the authority of House. Publication of proceedings of Parliament serves
public purpose. Members of British Parliament in earlier years had
treated publication of its proceedings as breach of privilege. However,
subsequently, the Members of British Parliament have permitted the
D 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:
E ‘’….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
F 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
G 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 essential to
the working of the representative system, be usefully carried
on, if the constituencies were kept in ignorance of what their
H representatives are doing? What would become of the right
KALPANA MEHTA v. UNION OF INDIA 205
[ASHOK BHUSHAN, J.]

of petitioning on all measures pending in parliament, the A
undoubted right of the subject, if the people are to be kept in
ignorance of what is passing in either house? Can any man
bring himself to doubt that the publicity given in modern times
to what passes in parliament is essential to the maintenance
of the relations subsisting between the government, the
B
legislature, and the country at large?....”
52. Further, it was held ‘no’ subject of parliamentary discussion
which more requires to be made known than an inquiry relating to it.
Cock Burn CJ. further held that although each House by standing
orders prohibits the publication of its debate but each House not only
permits, but also sanctions and encourages the publication: C

“....The fact, no doubt, is, that each house of parliament does,
by its standing orders, prohibit the publication of its debates.
But, practically, each house not only permits, but also
sanctions and encourages, the publication of its proceedings,
and actually gives every facility to those who report them. D
Individual members correct their speeches for publication in
Hansard or the public journals, and in every debate reports
of former speeches contained therein are constantly referred
to. Collectively, as well as individually, the members of both
houses would deplore as a national misfortune the withholding E
their debates from the country at large. Practically speaking,
therefore, it is idle to say that the publication of parliamentary
proceedings is prohibited by parliament....”
53. Under the Rule 379 of Lok Sabha, Secretary General is
authorised to prepare and publish the full report of the proceedings of F
the House under the direction of the Speaker. Parliament has also passed
a legislation, namely, the ‘Parliamentary Proceedings (Protection of
Publication) Act, 1977’ which provides that publication of reports of
parliamentary proceedings is privileged.
Section 3 of the Act is as follows: - G
“Section 3. Publication of reports of parliamentary proceedings
privileged:
(1) Save as otherwise provided in sub-section (2), no person
shall be liable to any proceedings, civil or criminal, in any
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206 SUPREME COURT REPORTS [2018] 4 S.C.R.

A court in respect of the publication 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
B the publication of any matter, the publication of which is not
for the public good. “
54. 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
C 361A is as follows:
“Art. 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
D 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:
E 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, or,
as the case may be, either House of the Legislature, of a State.
(2) Clause (1) shall apply in relation to reports or matters
F broadcast, by means of wireless telegraphy as part of any
programme or service provided by me ans of a broadcasting
station as it applies in relation to reports or matters published
in a newspaper.
Explanation.—In this article, “newspaper” includes a news
G agency report containing material for publication in a
newspaper.”
55. The rules framed under Article 118 of the Constitution of India
thus clearly permit the publication of parliamentary proceedings. Apart
from publication of the proceedings of the Parliament, including the reports
H
KALPANA MEHTA v. UNION OF INDIA 207
[ASHOK BHUSHAN, J.]

of the committees, now, they are also permitted to be broadcast on A
electronic media. 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.
B
56. At this juncture, it is relevant to note that as per rules framed
under Article 118 of the Constitution of India, both for Lok Sabha and
Rajya Sabha, the Parliamentary Standing Committees are to follow the
procedure after constitution of the committee and till the reports are
submitted to the Speaker. During the intervening period, when the
preparation of reports is in process and it is not yet submitted to the C
Speaker and published, there is no right to know the outcome of the
reports. Learned counsel for both the petitioners have submitted that the
right to know about the reports only arises when they have been published
for use of the public in general. Thus, no exception can be taken in the
petitioners obtaining 72nd and 81st Reports of Parliamentary Standing D
Committee.
E. RULES AND PROCEDURES REGARDING
PERMISSION FOR GIVING EVIDENCE IN COURTS
REGARDING PROCEEDINGS IN PARLIAMENT
57. The papers and proceedings of Parliament have been permitted E
to be given in evidence in Courts of law by the Parliament. In this context,
reference is made to Practice and Procedure of Parliament by M.N.
Kaul and S.L. Shakdhar, Seventh Edition, published by Lok Sabha
Secretariat, where on this subject following has been stated:
“Evidence in Courts Regarding Proceedings in Parliament F
Leave of the House is necessary for giving 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. G
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
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208 SUPREME COURT REPORTS [2018] 4 S.C.R.

A House or in 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
B 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
C permission without leave of the House.
Whenever any document relating to the proceedings of the
House or any committee thereof is required to be produced in
a court of law, the Court or the parties to the legal proceedings
have to request the House stating precisely the documents
D required, the purpose for which they are required and the
date by which they are required. It has also to be specifically
stated in each case whether only a certified copy of the
document should be sent or an officer of the House should
produce it before the court.”
E 58. After the enforcement of Right of Information Act, 2005, on
the basis of a report submitted by the Committee of Privileges, the
procedure for making available documents relating to the proceedings
of the House has been modified. Kaul and Shakdher had noticed the
detail in the above regard in Chapter XI dealing with powers, privileges
F and immunities of Houses, their Committees and Members to the
following effect:
“The Committee of Privileges, Fourteenth Lok Sabha, felt
that it was about time that the procedure for dealing with the
requests for documents relating to proceedings of the House,
G its Committees etc., received from Courts of Law and
investigating agencies were given a fresh look, particularly
in the light of the provisions of the Right to Information
Act,2005. The Committee, with the permission of the Speaker,
took up the examination of the matter. The Twelfth Report in
the matter was presented to the Speaker Lok Sabha on 28
H
KALPANA MEHTA v. UNION OF INDIA 209
[ASHOK BHUSHAN, J.]

April 2008 and laid on the Table of the House on 30 April A
2008. The Report was adopted by the House on 23 October
2008.
The Committee in their Report recommended the following
procedure:
(I) Procedure for making requests for documents relating to the B
proceedings of the House or of any Committee of the House:
A. If request for documents relating to proceedings of the
House or of any Committee of the House is made by a
Court or by the parties to a legal proceedings before a
court, the court or the parties to the proceedings as the C
case may be, shall specify the documents required, the
purpose for which they are required and the date by
which they are required. It should also be specifically
stated in each case whether only certified copies or
photocopies of the documents should be sent or an D
officer of the House should produce it before the court.
*****
(II) Procedure for dealing with requests for documents relating
to proceedings of the House or any Committee of the House.
E
*****
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.
F
*****
IV. The question whether a document relates to theproceedings
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 G
Committee of the House which are public documents should
be taken judicialnotice of and requests for certified copies
thereof may not be ordinarily made unless there are sufficient
reasons for making such requests.
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210 SUPREME COURT REPORTS [2018] 4 S.C.R.

A VI. Procedure after the Report of the Committee of Privileges
has been presented or laid on the Table of the House.”
59. 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.
B From page 257 to page 259 various instances have also been mentioned
whereas on a request received from Court for production of documents,
due permission was granted and documents were made available to the
Courts. At page 259 reference of the request received from Sessions
Judge, Cuddalore, for certified copy of Attendance Register of Rajya
Sabha was made. The extracts from relevant file has been quoted which
C is to the following effect:
“A request was received from the Sessions Judge, Cuddalore,
for certified extracts from the Attendance Register from 1
March 1963 to 15 March 1963, in the Rajya Sabha, showing
the presence and attendance of Shri R. Gopalakrishnan,
D member of the Rajya Sabha. As the House was not in session
when the said request was received, the Chairman granted
permission to send the relevant extracts from the Attendance
Register duly certified to the Sessions Judge. The extracts
were sent on 30 January 1964, and the Deputy Chairman
E informed the House accordingly.
As regards the production of printed/published debates of
the House or reference to them in a court, a view was held
that no leave of the House was required for the purpose.
Under Section 78 of the Evidence Act, 1872, the proceedings
F of Legislatures could be proved by copies thereof, printed by
order of the Government. The question of obtaining the leave
of the House would arise only if a court required the assistance
of any of the members or officers in connection with the
proceedings of the House or production of documents in the
custody of the Secretary-General of the House.”
G
60. From the above discussion it is clear that as a matter of fact
the Parliamentary materials including reports and other documents have
been sent from time to time by the permission of the Parliament itself to
be given as evidence in Courts of law.

H
KALPANA MEHTA v. UNION OF INDIA 211
[ASHOK BHUSHAN, J.]

F. THE APPLICABILITY OF THE INDIAN EVIDENCE A
ACT, 1872, IN THE CONTEXT OF PARLIAMENTARY
PROCEEDINGS.
61. Learned counsel for the petitioner has placed reliance on
Section 57 of the Evidence Act. Section 57 provides for “Facts of which
Court must take judicial notice”. Section 57 sub-section (4) is relevant B
which is quoted as below:
“Section 57. Facts of which Court must take judicial notice.
–– The Court shall take judicial notice of the following facts:
––
(1) All laws in force in the territory of India; C

xxx xxx xxx xxx
(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 laws for the D
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 E
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.” F

62. 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.
G
63. 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
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212 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Committee is defined in Rule 2 of Rules of Lok Sabha in following manner:
“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
B Secretariat for which is provided by the Lok Sabha
Secretariat.”
64. Article 118 sub-clause (1) read with Rules framed for conduct
of business in Lok Sabha and Rajya Sabha makes it clear that the
proceedings of Parliamentary Standing Committee including its Report
C are proceedings which are covered by the expression “course of
proceeding of Parliament”. Thus, we do not find any substance in the
above submission of Shri Shyam Divan.
65. Now submission of learned Attorney General in reference to
Section 57(4) needs to be considered.
D 66. The President exercises power under Article 372 sub-clause
(2) by way of repeal or amendment of any law in force in the territory of
India. The Adaptation Order issued by the President thus constitutionally
has same effect as the repeal or amendment of any law in force in the
territory of India. Under sub-clause (3)(b) of Article 372 the competent
E Legislature has also power of repealing or amending any law adapted or
modified by the President under sub-clause (2) of Article 372.
67. The Adaptation Order issued by the President under sub-clause
(2) of Article 372 thus has force of law and competent Legislature having
not made any amendment in the Adaptation Order of 1950, even after
F 77 years of the enforcement of the Constitution indicates that law as
adapted by Presidential Order, 1950 is continued in full force. The effect
of Section 57(4) in no manner is diminished by the fact that amendments
were made in Section 57(4) by the Presidential Adaptation Order.
68. One more provision of Evidence Act which needs to be noted
is Section 74 which deals with the public documents. Section 74 of the
G
Evidence Act is as follows:
“74. Public documents.—The following documents are public
documents :—
(1) Documents forming the acts, or records of the acts—
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KALPANA MEHTA v. UNION OF INDIA 213
[ASHOK BHUSHAN, J.]

(i) of the sovereign authority, A
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive,of
any part of India or of the Commonwealth, or of a foreign
country; of any part of India or of the Commonwealth, or
of a foreign country; B

(2) Public records kept in any State of private documents.”
69. 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 C
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 D
presumption that the contents of the documents also are true and correct.
70. In this context, reference is made to a judgment of the Privy
Council reported in Right Honourable Gerald Lord Strickland vs.
Carmelo Mifsud Bonnici,AIR 1935 PC 34. In the above case reports
of the debates in the Legislative Assembly containing speeches of the E
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 facts contained in the speeches”.
71. A judgment of Bombay High Court dealing with Section 74 of F
the Evidence Act in reference to Article 105 of the Constitution of India
and the Rules of Procedure and Conduct of Business in Lok Sabha has
been cited, namely, Standard Chartered Bank vs. A.B.F.S.L & ORS.,
2001 (4) BOM.LR 520. In the above case, a report of Joint
Parliamentary Committee was objected by the learned counsel for the
G
Standard Chartered Bank. In paragraph 1 of the judgment, issue which
has arisen in the case was noticed to the following effect:
“1.Two points arise for determination. Firstly, whether the
Report of Joint Parliamentary Committee is a public document
as defined under Section 74 of the Indian Evidence Act, 1872.
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214 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Secondly, even if it is a public document, whether the findings
of the Joint Parliamentary Committee constitute evidence as
defined under Section 3 of the Indian Evidence Act.”
72. It was contended before the Bombay High Court that Joint
Parliamentary Committee report is a public document as defined in Section
B 74(1) of the Evidence Act. In paragraph 2 of the judgment arguments
have been noticed. The argument was opposed by the other side. The
Bombay High Court came to the conclusion that report of JPC is a
public document under Section 74 of the Evidence Act and the report
was admissible as evidence. Justice S. H. Kapadia (as he then was)
held that the correctness of the findings in the JPC will ultimately depend
C on the entire view of the matter. Following was observed in paragraph 5
of the judgment:
“5....The Report of JPC has recorded that there was an
arrangement between the brokers and the Banks,
including Standard Chartered Bank, under which
D the Banks were assured of a return of 15%. It was something
like a minimum guaranteed return offered by the brokers to
the Banks. As stated above, the Report has given findings on
certain banking and market practices which led to the
financial irregularities in security transactions. In that context,
E the JPC examined various Officers of the Banks and the
brokers. After recording their evidence, as stated above, JPC
came to the conclusion that there were certain practices
followed by the Banks and the brokers like Routing facilities,
margin trading and 15% arrangement. To this extent, the
findings of JPC can be read as evidence in the present matter.
F However, the question as 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
G 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
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KALPANA MEHTA v. UNION OF INDIA 215
[ASHOK BHUSHAN, J.]

stage, I am concerned with admissibility. The correctness of A
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.”
73. In paragraph 6 ultimately the Court held : B
“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 Standard
Chartered Bank and HPD. That subject to above, Can Bank C
Mutual Fund will have to prove whether the suit transaction
took place under such an arrangement as any other Fact. At
the request of Mr. Cooper, it is clarified that this ruling is
subject to my earlier ruling dated 27th June, 2001 on the
argument of Standard Chartered Bank on inadmissibility of
documents under Sections 91 and 92 of the Evidence Act and D
also in view of the provisions of the Benami Transactions
Abolition Act.”
G. NATURE AND EXTENT OF PARLIAMENTARY
PRIVILEGES REGARDING REPORTS OF COMMITTEES OF
BRITISH PARLIAMENT E

74. In the Constituent Assembly Debates on draft Article 85 (now
Article 105 of the Constitution of India) and draft Article 169 (now Article
194 of the Constitution of India), various members have brought
amendments and prayed that privileges of the House of the Parliament
be enumerated and the Constitution should not refer to House of F
Commons of the United Kingdom for referring to its privileges. Dr.
B.R. Ambedkar in his reply in the Constituent Assembly Debates on
03.06.1949 stated as follows:-
“It seems to me, if the proposition was accepted that the Act
itself should enumerate the privileges of Parliament, we would G
have to follow three courses. One is to adopt them in the
Constitution, namely to set out in detail the privileges and immunities
of Parliament and its members. I have very carefully gone over
May’s Parliamentary Practice which is the source book of
knowledge with regard to the immunities and privileges of
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216 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Parliament. I have gone over the index to May’s Parliamentary
Practice and I have noticed that practically 8 or 9 columns of the
index are devoted to the privileges and immunities of Parliament.
So that if you were to enact a complete code of the privileges and
immunities of Parliament based upon what May has to say on this
subject, I have not the least doubt in my mind that we will have to
B
add not less than twenty or twenty-five pages relating to
immunities and privileges of Parliament. I do not know whether
the Members of this House would like to have such a large
categorical statement of privileges and immunities of Parliament
extending over twenty or twenty-five pages. That I think is one
C reason why we did not adopt that course.”
75. The draft article was finally approved maintaining the reference
to House of Commons in regard to 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
D commencement of the Constitution.
76. 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
E 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:–
F
“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:”
77. The above declaration made in Bill of Rights thereafter has
G been firmly established and till date enjoyed by the House of Commons
of the United Kingdom. Erskine May in ‘Parliamentary Practice, 24th
Edition’ while dealing with privileges of freedom of speech says following
with regard to the Bill of Rights:-
“Article IX of the Bill of Rights 1689 confers on ‘proceedings in
Parliament’ protection from being ‘impeached or questioned’ in
H
KALPANA MEHTA v. UNION OF INDIA 217
[ASHOK BHUSHAN, J.]

any ‘court or place out of Parliament’. Except in the limited A
circumstances mentioned below, none of these critical terms is
defined, so that it has often fallen to the courts to arrive at judgments
about their meaning, against the background of parliamentary
insistence on the privilege of exclusive cognizance of proceedings
(see above) and concern that judicial interpretation should not
B
narrow the protection of freedom of speech which article IX
affords.”
78. There is no doubt that reports of the Standing Committee of
the Parliament are also Parliamentary proceedings. Participation of
members of Parliament in normal course is usually by a speech but their
participation in Parliamentary proceedings is not limited to speaking only. C
Participation of members of the Parliament is also by various other
recognised forms such as voting, giving notice of a motion, presenting a
petition or submitting a report of a Committee, the modern forms of
expression by which the wish and will of Parliamentarians is expressed.
The report submitted by Standing Committee of Parliament is also another D
form of expression. Thus, the Parliamentary privileges which are
contained in Sub-clause (2) of Article 105 to individual Parliamentary
member are also extended by virtue of Sub-clause (3) of Article 105 to
the Parliamentary Committee Reports. The Parliamentary privileges
contained in Article IX of Bill of Rights thus also protect the Parliamentary
Standing Committee Reports. In this Context, references to few English E
cases are relevant. The case of Stockdale Vs. Hansard, 9 A.D. &
E.2 Page 1112 is referred. The case was an action for a publication
defaming the plaintiff’s character by imputing that he had published an
obscene libel. Following was stated by Lord Denmen, C.J.
“Thus the privilege of having their debates unquestioned, though F
denied when the members began to speak their minds freely in
the time of Queen Elizabeth, and punished in its exercise both by
that princess and her two successors, was soon clearly perceived
to be indispensable and universally acknowledged. By
consequence, whatever is done within the walls of either assembly G
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.....”

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218 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 79. 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:-
B
“.....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
C 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 contempt and
inefficiency without it.”
80. Another case in which question of Parliamentary privilege
D with respect to Parliamentary report of a select committee of House of
Commons was involved was the case of Dingle Vs Associated
Newspapers Ltd. & Ors. (1960) 2 Q.B. 405. The plaintiff sued for
damages for libels appearing in the issues of the Daily Mail Newspaper.
The plaintiff alleged that the defendants falsely and maliciously printed
E and published an article concerning the circumstances in which the shares
in Ardwick Cemetery Ltd. were acquired by the Manchester Corporation.
A Committee of the House of Commons has also submitted a report that
the Corporation obtained the shares by presenting a one-sided view,
which failed to disclose the true position of the company on a break-up.

F 81. Pearson, J. Referring to Bill of Rights, 1688 and the case of
Bradlaugh V. Gossett said following:-
“....Reference was made to the Bill of Rights, 1688, s. 1, art.9, on
freedom of speech, which provides: “That the freedom of speech
and debates or proceedings in Parliament ought not to be impeached
G or questioned in any court or place out of parliament.”
Reference was also made to Bardlaugh v. Gossett, and it is
sufficient to read a short portion of the headnote: “The House of
Commons is not subject to the control of Her Majesty’s Courts in
its administration of that part of the statute law which has relation
to its internal procedure only. What is said or done within its walls
H
KALPANA MEHTA v. UNION OF INDIA 219
[ASHOK BHUSHAN, J.]

cannot be inquired into in a court of law. A resolution of the A
House of Commons cannot change the law of the land. But a
court of law has no right to inquire into the propriety of a resolution
of the House restraining a member from doing within the walls of
the House itself something which by the general law of the land
he had a right to do.” There is a clear affirmation of the exclusive
B
right of Parliament to regulate its own internal proceedings.
That was one of the points put forward and, in my view, it is quite
clear that to impugn the validity of the report of a select committee
of the House of Commons, especially one which has been
accepted as such by the House of Commons by being printed in
the House of Commons Journal, would be contrary to section 1 of C
the Bill of Rights. No such attempts can properly be made outside
Parliament.....”
82. Another judgment which also related to proceeding in
Parliament is Church of Scientology of California Vs. Johnson-Smith
(1972) 1 Q.B. 522. Referring earlier judgment in Dingle Vs. Associated D
Newspapers, Browne, J. said following:-
“The most recent case to which I was referred was Dingle Vs.
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 E
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 F
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. G
By analogy with this case it seems to me that the plaintiff’s here
are trying to use what happened in Parliament in order to support
a part of their case in respect of this libel published outside
Parliament in the television broadcast.
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220 SUPREME COURT REPORTS [2018] 4 S.C.R.

A I am quite satisfied that in these proceedings it is not open to
either party to go directly, or indirectly, into any question of the
motives or intentions of the defendant or Mr. Hordern or the then
Minister of Health or any other Member of Parliament in anything
they said or did in the House.....”
B 83. What was held in the above cases clearly establish that it is
now well settled that proceedings undertaken in the Parliament including
a report of the Standing Committee cannot be challenged before any
Court. The word ‘challenge’ includes both ‘impeaching’ and ‘questioning’
the Parliamentary Committee Reports.
C 84. After having noticed the nature and extent of Article 9 of the
Bill of Rights (1688), we now proceed to consider the question, as to
whether, use of parliamentary materials including Standing Committee
Report in courts, violates the parliamentary privilege as enshrined in the
Article 9 of Bill of Rights (1688). The most important judgment to be
noticed in the above regard is the judgment of House of Lords in Pepper
D (Inspector of Taxes) v. Hart and related appeals, 1993(1) All ER
42. A Seven Member Committee of House of Lords heard the case
looking to the importance of the issue raised. The opinion expressed by
the Lord Browne-Wilkinson was concurred by all except one. The
two questions which arose in the case, were noticed in following words
E by Lord Browne Wilkinson:
“....However, in the circumstances which I will relate, the
appeals have also raised two questions of much wider
importance. The first is whether in construing ambiguous or
obscure statutory provisions your Lordships should relax the
F historic rule that the courts must not look at the parliamentary
history of legislation or Hansard for the purpose of
construing such legislation. The second is whether, if reference
to such materials would otherwise be appropriate, it would
contravene SI, art 9 of the Bill of Rights (1688) or
parliamentary privilege 795.”
G
85. Lord Wilkinson also considered Article 9 of Bill of Rights (1688),
in the context that whether such use of parliamentary materials will
contravene the parliamentary 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
H
KALPANA MEHTA v. UNION OF INDIA 221
[ASHOK BHUSHAN, J.]

that the court would be giving effect to what was said and done there. A
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 B
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 C
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 say.
Plainly art 9 cannot have effect so as to stifle the freedom of D
all to comment on what is said in Parliament, even though
such comment may influence members in what they say.
In my judgment, the plain meaning of art 9, viewed against
the historical background in which it was enacted, was to
ensure that members of Parliament were not subjected to any E
penalty, civil or criminal, for what they said and were able,
contrary to the previous assertions of the Stuart monarchy, to
discuss what they, as opposed to the monarch, chose to have
discussed. Relaxation of the rule will not involve the courts
in criticising what is said in Parliament. The purpose of
looking at Hansard will not be to construe the words used by F
the minister but to give effect to the words used so long as
they are clear. Far from questioning the independence of
Parliament and its debates, the courts would be giving effect
to what is said and done there.”
86. The House of Lords also observed that Hansard has frequently G
been used in cases of judicial review and following was stated in this
context:
“Moreover, the Attorney General’s contentions are inconsistent
with the practice which has now continued over a number of
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222 SUPREME COURT REPORTS [2018] 4 S.C.R.

A years in cases of judicial review. In such cases, Hansard has
frequently been referred to with a view to ascertaining whether
a statutory power has been improperly exercised for an alien
purpose or in a wholly unreasonable manner. In Brind v
Secretary of State for the Home Dept [1991] 1 All ER 720,
[1991] 1 AC 696 it was the Crown which invited the court to
B
look at Hansard to show that the minister in that case had
acted correctly (see [1991] 1 AC 696 at 741). This House
attached importance to what the minister had said (see [1991]
1 All ER 720 at 724, 729-730, [1991] 1 AC 696 at 749, 755-
756). The Attorney General accepted that references to
C Hansard for the purposes of judicial review litigation did not
infringe art 9. Yet reference for the purposes of judicial review
and for the purposes of construction are indistinguishable.
In both type of cases, the minister’s words are considered
and taken into account by the court; in both, the use of such
words by the courts might affect what is said in Parliament.”
D
87. In the end Lord Wilkinson held that reference to
parliamentary materials for purpose of construing legislation does not
breach Article 9 of the Bill of Rights (1688). Following was held:
“....For the reasons I have given, as a matter of pure law this
E 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.

F For the reasons I have given, in my judgment reference to
parliamentary materials for the purpose of construing
legislation does not breach S 1, art 9 of the Bill of Rights....”
88. Again the House of Lords in Prebble v. Television New
Zealand Ltd Privy Council, (1994) 3 All ER 407 observed that there
G 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
H
KALPANA MEHTA v. UNION OF INDIA 223
[ASHOK BHUSHAN, J.]

matter of history. Similarly, he accepted that the fact that a A
statute had been passed is admissible in court proceedings.
Thus, in the present action, there cannot be any objection to
it being proved what the plaintiff or the Prime Minister said
in the House (particulars 8.2.10 and 8.2.14) or that the State-
owned Enterprises Act 1986 was passed (particulars 8.4.1).
B
It will be for the trial judge to ensure that the proof of these
historical facts is not used to suggest that the words were
improperly spoken or the statute passed to achieve an
improper purpose.
It is clear that, on the pleadings as they presently stand, the
defendants intent to rely on these matters not purely as a matter C
of history but as part of the alleged conspiracy or its
implementation. Therefore, in their Lordships’ view, Smellie J
was right to strike them out. But their Lordships wish to make
it clear that if the defendants wish at the trial to allege the
occurrence of events or the saying of certain words in D
Parliament without any accompanying allegation of
impropriety or any other questioning there is no objection to
that course.”
89. R. v. Murphy, (1986) 5 NSWLR 18 is another judgment
where Article 9 of Bill of Rights was considered in the context of E
parliamentary proceedings. The tender of Hansard in curial proceedings
is not a breach of parliamentary privilege. Hunt J., stated the following:
“None of the cases to which reference has been made has
caused me to alter the interpretation of the Bill of Rights, art
9, which I have proposed. I remain of the view that what is F
meant by the declaration that “freedom of speech... in
parliament ought not to be impeached or questioned in any
court or place out of parliament” is that no court proceedings
(or proceedings of a similar nature) having legal consequences
against a member of parliament (or a witness before a
parliamentary committee) are permitted which by those legal G
consequences have the effect of preventing that member (or
committee witness) exercising his freedom of speech in
parliament (or before a committee) or of punishing him for
having done so.”
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224 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 90. The next judgment which needs to be noted is judgment of the
House of Lords in Wilson Vs. First Country Trust Ltd. (2003) UKHL
40. The House of Lords in the above case has held that decision in
Pepper Vs. Hart (supra) removed from the law an irrational exception.
Before the decision in Pepper Vs. Hart (supra) a self-imposed judicial
rule excluded use of parliamentary materials as an external aid. It was
B
held that the Court 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
C 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
D 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
E 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 this.....”
91. The case of Touissant Vs. Attorney General of St. Vincent,
(2007) UKPC 48 is another judgment of the House of Lords where
F Article IX of Bill of Rights and Parliamentary privileges in context of
use in Court of statement made by Prime Minister during Parliamentary
debate came for consideration. It was held that Article IX of Bill of
Rights precludes the impeaching or questioning in Court or out of
Parliament of the freedom of speech and debates or proceedings in
G Parliament. It was held that giving a literal meaning will lead to absurd
consequences. In Para 10, following was stated by House of Lords:-
“Against this background, the Board turns to article 9 of the Bill
of Rights and the wider common law principle identified in Prebble
case. Article 9 precludes the impeaching or questioning in court
H or out of Parliament of the freedom of speech and debates or
KALPANA MEHTA v. UNION OF INDIA 225
[ASHOK BHUSHAN, J.]

proceedings in Parliament. The Board is concerned with the A
proposed use in court of a statement made during a parliamentary
debate. But it notes in passing that the general and somewhat
obscure wording of article 9 cannot on any view be read absolutely
literally. The prohibition on questioning “out of Parliament” would
otherwise have “absurd consequences”, e.g. in preventing the
B
public and media from discussing and criticising proceedings in
parliament, as pointed out by the Joint Committee on Parliamentary
Privilege, paragraph 91 (United Kingdom, Session 1998-1999, HL
Paper 43-I, HC 214-I). On the other hand, article 9 does not
necessarily represent the full extent of the parliamentary privilege
recognised at common law. As Lord Browne-Wilkinson said in C
Prebble case at p. 332, there is in addition:
“a long line of authority which supports a wider principle, of
which article 9 is merely one manifestation, viz. that the courts
and Parliament are both astute to recognise their respective
constitutional roles. So far as the courts are concerned they D
will not allow any challenge to be made to what is said or done
within the walls of Parliament in performance of its legislative
functions and protection of its established privileges.”
92. The House of Lords also referred to report of the Joint
Committee, which welcome the use of the ministerial statement in Court. E
Para 17 of the judgment is to the following effect:-
“In such cases, the minister’s statement is relied upon to explain
the conduct 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 F
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 G
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 H
226 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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.”
B 93. Office of Government of Commerce Vs. Information
Commissioner, (2010) QB 98, was a case where Stanley Burnton, J.
held that receiving evidence of the proceedings of Parliament are relevant
for historical facts or events and does not amount to “questioning”. In
Para 49, following was stated:-
C “49. However, it is also important to recognise the limitations of
these principles. There is no reason why the Courts should not
receive evidence of the proceedings of Parliament when they are
simply relevant historical facts or events: no “questioning” arises
in such a case: see [35] above. Similarly, it is of the essence of the
D judicial function that the Courts should determine issues of law
arising from legislation and delegated legislation. Thus, there can
be no suggestion of a breach of Parliamentary privilege if the
Courts decide that legislation is incompatible with the European
Convention on Human Rights: by enacting the Human Rights Act
1998, Parliament has expressly authorised the Court to determine
E questions of compatibility, even though a Minister may have made
a declaration under section 19 of his view that the measure in
question is compatible. The Courts may consider whether delegated
legislation is in accordance with statutory authority, or whether it
is otherwise unlawful, irrespective of the views to that effect
F expressed by Ministers or others in Parliament: R (Javed) v
Secretary of State for the Home Department [2001] EWCA Civ
789, [2002] QB 129 at [33]:
Legislation is the function of Parliament, and an Act of
Parliament is immune from scrutiny by the courts, unless
G challenged on the ground of conflict with European law.
Subordinate legislation derives its legality from the primary
legislation under which it is made. Primary legislation that
requires subordinate legislation to be approved by each House
of Parliament does not thereby transfer from the courts to the
two Houses of Parliament, the role of determining the legality
H of the subordinate legislation.
KALPANA MEHTA v. UNION OF INDIA 227
[ASHOK BHUSHAN, J.]

94. Another judgment delivered by Stanley Burnton, J. in A
Federation of Tour Operators Vs. HM Treasury, (2007) EWHC 2062
(Admin) was a case where objection to receiving evidence report of
Treasury Select Committee was raised. In Para 5 of the judgment,
objection raised on behalf of the Speaker of the House was noticed.
Para 5 is to the following effect:-
B
“The Speaker of the House of Commons intervened because of
the Claimants’ 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 Art.9 of
the Bill of Rights and the wider principle of Parliamentary C
privilege.”
95. The issue as to the admissibility of the Parliamentary material
was considered in detail while referring to judgment of House of Lords
in Touissant’s (supra). It was held that there is no basis for distinguishing
between statement of minister in the House and statement made to a D
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), E
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, the opinion of a F
Parliamentary Committee will be irrelevant to the issues before
the Court (as in R (Bradley) v Secretary of State for Work and
Pensions [2007] EWHC 242 (Admin) and, as will be seen, the
present case), and accordingly I do not think it sensible to seek to
consider the admissibility of such a report in a case in which its
contents are relevant. G
124. The efficacy or otherwise of APD as an environmental
measure is also, in my judgment, a question which, if relevant, is
to be determined on the basis of evidence and argument before
the Court, and not on the basis of the opinion of anyone whose
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228 SUPREME COURT REPORTS [2018] 4 S.C.R.

A evidence is not before the Court. There is, however, no reason
why the Claimants cannot take from what has been said to or by
a Select Committee points that can be put before the Court. For
example, what was said by the Financial Secretary to the Treasury
to the Select Committee on the Environment is not rocket science,
but something that would be obvious to anyone who gave the
B
matter some thought. The points he made can be made
independently, without reference to his statement.
125. Thus, in the end, I do not think that the Parliamentary material
referred to by the Claimants, which I have looked at de bene
esse , as such advances their case.”
C
96. Learned counsel for the respondents has pleaded reliance on
a judgment of R v. Secretary of State for Trade and others, ex parte
Anderson Strathclyde plc, 1983(2) All ER 233, Dunn LJ while
delivering his opinion has observed that while using a report in Hansard
the Court would have to do more than take note of the fact that a certain
D statement was made in the House on a certain date. The Court had 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, according to Dunn LJ, would be contrary to
Article 9 of the Bill of Rights. Following was stated by the Court:
E “In my judgment there is no distinction between using a
report in Hansard for the purpose of supporting a cause of
action arising out of something which occurred outside the
House, and using a report for the purpose of supporting a
ground for relief in proceedings for judicial review in respect
F of something which occurred outside the House. In both cases
the court would have to do more than take note of the fact
that a certain statement was made 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.
G 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
H
KALPANA MEHTA v. UNION OF INDIA 229
[ASHOK BHUSHAN, J.]

Parliament to fee speech in the House with the possible A
adverse effects referred to by Browne.”
97. 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 B
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 C
at the materials but the court itself refused to do so on the
grounds that it would constitute a breach of art 9 (at 237,
239 per Dunn LJ). In view of the Attorney General’s
concession and the decision of this House in Brind’s case, in
my judgment Ex p Anderson Strathclyde plc was wrongly
decided on this point.” D

98. Another case learned counsel for the respondents relied on is
Office of Government Commerce v. Information Commissioner
(supra). Although, it was held by Stanley Burnton J that there is no
reason why the courts should not receive evidence of the proceedings
of Parliament when they are simply relevant historical facts or events; E
no ‘questioning’ arises in such a case. However, in paragraph 58 of the
judgment following was stated:
“58. In addition, in my judgment, there is substance in Mr.
Chamberlain’s futher submission, summarised at para 23(b)(i)
above. If a party to proceedings before a court (or the F
Information Tribunal) seeks to rely on an opinion expressed
by a select committee, the other party, if it wishes to contend
for a different result, must either contend that the opinion of
the committee was wrong (and give reasons why), there by at
the very least risking a breach of parliamentary privilege, if G
not committing an actual breach, or, because of the risk of
that breach, accept that opinion notwithstanding that it would
not otherwise wish to do so. This would be unfair to that party.
It indicates that a party to litigation should not seek to rely
on the opinion of a parliamentary committee, since it puts the
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230 SUPREME COURT REPORTS [2018] 4 S.C.R.

A other party at an unfair disadvantage and, if the other party
does dispute the correctness of the opinion of the committee,
would put the tribunal in the position of committing a breach
of parliamentary privilege if it were to accept that the
parliamentary committee’s opinion was wrong. As Lord Woolf
MR said in Hamilton v Al Fayed [1999] I WLR 1569, 1586G,
B
the courts cannot and must not pass judgment on any
parliamentary proceedings.”
99. In the same judgment subsequently, it was held that whether
there is any breach of parliamentary privilege in such a reference will
depend on the purpose for which the reference is made. In paragraph
C 62 of the judgment following has been held:
“62. Generally, however, I do not think that inferences can
be drawn from references made by the court to the reports of
parliamentary select committees in cases where no objection
was taken to its doing so. In addition, as I said in R(Federation
D 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
E 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.”

F 100. 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
G 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. Both parties
cannot impeach or question the report. In so far as the question of unfair
H
KALPANA MEHTA v. UNION OF INDIA 231
[ASHOK BHUSHAN, J.]

disadvantage is concerned, both the parties are fee to establish their A
claim or objection by leading evidence in the court and by bringing materials
to prove their point. The court has the right to decide the ‘lis’ on the
basis of the material and evidence brought by the parties. Any observation
in the report or inference of the Committee cannot be held to be binding
between the parties or prohibit either of the parties to lead evidence to
B
prove their stand in court of law. Unfair disadvantage stands removed in
the above manner.
101. The above decisions categorically hold that Parliamentary
materials including report of a Standing Committee of a Parliament can
very well be accepted in evidence by a Court. However, in view of
Parliamentary privileges as enshrined in Article IX of Bill of Rights, the C
proceedings of Parliament can neither be questioned nor impeached in
Court of Law. The cases of Judicial Review have been recognised as
another category where the Courts examine Parliamentary proceedings
to a limited extent.
102. This Court in number of cases has also referred to and relied D
Parliamentary proceedings including reports of the Standing Committee
of the Parliament. Learned counsel for the petitioners have given
reference to several cases in this regard namely, Catering Cleaners of
Southern Railway Vs. Union of India & Anr., (1987) 1 SCC 700
where the Court has taken into consideration report of a Standing E
Committee of Petitions. Another case relied on is Gujarat Electricity
Board Vs. Hind Mazdoor Sabha & Ors., (1995) 5 SCC 27. In the
case of State of Maharashtra Vs. Milind & Ors., (2001) 1 SCC 4,
the Court has referred and relied to a Joint Parliamentary Committee
Report. In the case of Federation of Railway Officers Association
Vs. Union of India, (2003) 4 SCC 289, the Court has referred to a F
report of the Standing Committee of parliament on Railways. In the
case of Ms. Aruna Roy & Ors. Vs. Union of India & Ors., (2002) 7
SCC 368, report of a Committee namely S.B. Chavan Committee, which
was appointed by the Parliament was relied and referred. M.C. Mehta
Vs. Union of India, 2017 SCC Online 394 was again a case where G
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
Vs. State of Haryana & Ors., (2011) 10 SCC 529; Modern Dental
College and Research Centre Vs. State of Madhya Pradesh & Ors.,
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232 SUPREME COURT REPORTS [2018] 4 S.C.R.

A (2016) 7 SCC 353; and Lal Babu Priyadashi Vs. Amritpal Singh,
(2015) 16 SCC 795.
103. 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
B Reports but the issue of privilege was neither raised nor considered.
104. 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
C Parliament. Thus, no exception can be taken in producing Reports of
Parliament Committee before a Court of Law. The Indian Evidence
Act, 1874, which regulates the admission of evidence in Court of Law,
also refers to proceedings in Parliament as a public document of which
Court shall take Judicial notice. All these factors lead us to conclude
that there is no violation of any Parliamentary privilege in accepting
D Reports of Parliamentary Committee in Court.
105. Now we come to question that when Parliamentary Reports
cannot be questioned or impeached in Court of Law for what use they
may be looked into by Court of Law. We have already noticed above
ample authorities which lays down that for events which take place in
E Parliament, the facts which was stated before the Parliament or a
Committee, are facts which can be looked into. Further when
Parliamentary Reports can be looked into for few purposes as has been
conceded by learned Attorney General as well as the respondents
themselves, we do not find any justification in reading any prohibition for
F use of Reports for other purposes which are legal and lawful, without
breach of any privilege.
H. EXCLUSIONARY RULES HOW FAR APPLICABLE
IN THE INDIAN CONTEXT
106. We have already noticed English cases dealing with
G exclusionary rules and subsequent cases whittling down the exclusionary
rules. We have noticed above that in large number of cases this Court
has referred to and relied on Parliamentary Standing Committee Reports.
In most of the said cases, the objection relating to Parliamentary privilege
was neither raised nor gone into, but there are few cases of this Court
H
KALPANA MEHTA v. UNION OF INDIA 233
[ASHOK BHUSHAN, J.]

where the principles and cases pertaining to exclusionary rules were A
gone into and the court considered the Parliamentary materials thereafter.
107. In State of Mysore vs. R.V. Bidap, 1974 (3) SCC 337, the
Constitution Bench of this Court speaking through Krishna Iyer, J.
stated that ‘Anglo-American jurisprudence, unlike other systems, has
generally frowned upon the use of parliamentary debates and press B
discussions as throwing light upon the meaning of statutory provisions’.
Justie Krishna Iyer opined that there is a strong case of whittling
down the Rule of Exclusion followed in the British courts.
In paragraph 5 of the judgment following was held:
“The Rule of Exclusion has been criticised by jurists as C
artificial. The trend of academic opinion and the practice in
the European system suggest that interpretation of a statute
being an exercise in the ascertainment of meaning, everything
which is logically relevant should be admissible. Recently, an
eminent Indian jurist has reviewed the legal position and D
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 E
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.” F
108. Another Constitution Bench in R.S. Nayak vs. 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 G
Court observed that the trend certainly seems to be in the reverse gear
that is use of report of Committee as external aids to construction. In
paragraph 33 following was stated:
“33. The trend certainly seems to be in the reverse gear in
that in order to ascertain the true meaning of ambiguous words
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234 SUPREME COURT REPORTS [2018] 4 S.C.R.

A in a statute, reference to the reports and recommendations of
the commission or committee which preceded the enactment
of the statute are held legitimate external aids to construction.
The modern approach has to a considerable extent eroded
the exclusionary rule even in England.”
B 109. After considering the certain other cases and the Bidap case
(supra) this Court held that those exclusionary rules have been given a
descent burial by this Court. It is useful to extract the following from
paragraph 34 of the judgment:
“34..Further even in the land of its birth, the exclusionary
C rule has received a serious jolt in Black-Clawson
International Ltd. v. Paperwork Waldhef Ascheffenburg AC(2)
Lord Simon of Claisdale in his speech while examining the
question of admissibility of Greer Report observed as under:
“At the very least, ascertainment of the statutory objective
D can immediately eliminate many of the possible meanings that
the language of the Act might bear and if an ambiguity still
remains, consideration of the statutory objective is one of the
means of resolving it.
The statutory objective is primarily to be collected from the
E provisions of the statute itself. In these days, when the long
title can be amended in both Houses, I can see no reason for
having recourse to it only in case of an ambiguity-it is the
plainest of all the guides to the general objectives of a statute.
But it will not always help as to particular provisions. As to
the statutory objective of these a report. leading to the Act is
F likely to be the most potent aid and, in my judgment, it would
be more obscurantism not to avail oneself of it. here is, indeed
clear and high authority that it is available for this purpose”.
....A reference to Halsbury’s Laws of England, Fourth Edition,
Vol. 44 paragraph 901, would leave no one in doubt that
G ‘reports of commissions or committees preceding the enactment
of a statute may be considered as showing the mischief aimed
at and the state of the law as it was understood to be by the
legislature when the statute was passed.’ In the footnote under
the statement of law cases quoted amongst others are R. v.
Olugboja, R. v. Bloxham, in which Eighth report of Criminal
H
KALPANA MEHTA v. UNION OF INDIA 235
[ASHOK BHUSHAN, J.]

Law Revision Committee was admitted as an extrinsic aid to A
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 B
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....................
C
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.”
D
110. 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 General have not disputed
that Parliamentary reports and materials can be used for the purposes E
of taking into consideration legislative history for interpretation of statute
as well as for considering the statement made by a Minister. When
there is no breach of privilege in considering the Parliamentary materials
and reports of the Committee by the Court for the above two purposes,
we fail to see any valid reason for not accepting the submission of the F
petitioner that courts are not debarred from accepting the Parliamentary
materials and reports as evidence before it, provided the court does not
proceed to permit the parties to question or impeach the reports.
111. Learned counsel for the respondents have also referred to
judgment of this Court in Jyoti Harshad Mehta (Mrs) and others vs. G
Custodian and others, 2009 (10) SCC 564.
112. In the above case, the court was considering an Enquiry
Committee Report, namely, Janakiraman Committee Report. In the above
context following observations were made in paragraph 57 of the
judgment:
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236 SUPREME COURT REPORTS [2018] 4 S.C.R.

A “57. It is accepted fact that the reports of the Janakiraman
Committee, the Joint Parliamentary Committee and the Inter-
Disciplinary Group (IDG) are admissible only for the purpose
of tracing the legal history of the Act alone. The contents of
the report should not have been used by the learned Judge of
the Special Court as evidence,”
B
113. In paragraph 28(viii)), the arguments of appellants were
noticed to the effect that Judge, Special Court, committed a serious
illegality insofar as he relied upon the Janakiraman Committee Report,
which was wholly inadmissible in evidence. The learned Judge, Special
Court, had passed order on an application of custodian which was set
C aside by this Court by remitting back the matter to Special Court with
some directions. The Special Court thereafter relying on the said Report
passed order. In this context, observations were made in paragraph 57
that the report can be admissible only for the purpose of tracing the legal
history of the Act alone and the contents of the report should not have
D been used by the learned Judge as evidence. This Court also took view
that various audit reports were relied which were not considered. In
paragraph 58 following was stated:
“58. It does not appear that the Special Judge had considered
this aspect of the matter in great detail. The learned Judge,
E Special Court, 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.”
114. The Special Court was deciding the lis in which party had
F 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
G 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.

H
KALPANA MEHTA v. UNION OF INDIA 237
[ASHOK BHUSHAN, J.]

115. Another judgment which has been relied by the respondents A
is State Bank of India vs. National Housing Bank and others, 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 a long line of judicial authority that
the findings of even a statutory Commission appointed under B
the Commissions of Inquiry Act, 1952 are not enforceable
proprio vigore as held in Ram Krishna Dalmia v. Justice S.R.
Tendolkar and Ors. : AIR 1958 SC 538 and the statements
made before such Commission are expressly made inadmissible
in any subsequent proceedings civil or criminal. The leading
judicial pronouncements Maharaja Madhava Singh v. C
Secretary of State for India in Council (1903-04) 31 IA 239
(PC), M.V. Rajwade v. Dr. S.M. Hassan MANU/NA/0131/1953
: AIR 1954 Nag 71: 55 Cri LJ 366, Ram Krishna Dalmia v.
Justice S.R., AIR 1958 SC 538, State of Karnataka v. Union
of India,(1977) 4 SCC 608, Sham Kant v. State of D
Maharashtra : (1992) Supp (2) SCC 521 on that question
were succinctly analysed by this Court in : (2001) 6 SCC 181,
Paras 29-34. Para 34 of the judgment inter alia reads:
34 ... In our view, the courts, civil or criminal, are not bound
by the report or findings of the Commission of Inquiry as E
they have to arrive at their own decision on the evidence
placed before them in accordance with law.”
116. In the above case, the Court has relied on Janakiraman
Committee which was not a statutory body, authorised to collect evidence
and was a body set up by the Governor of Reserve Bank of India in F
exercise of its administrative functions which has been noted by this
Court in paragraph 51. The observation made by this Court in paragraph
50 has to be read in the context of observations made by this Court in
paragraph 51 which is to the following effect:
51. Therefore, Courts are not bound by the conclusions and G
findings rendered by such Commissions. The statements made
before such Commission cannot be used as evidence before
any civil or criminal court. It should logically follow that even
the conclusions based on such statements can also not be
used as evidence in any Court. Janakiraman Committee is
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238 SUPREME COURT REPORTS [2018] 4 S.C.R.

A not even a statutory body authorised to collect evidence in
the legal sense. It is a body set up by the Governor of Reserve
Bank of India obviously in exercise of its administrative
functions,
... the Governor, RBI set up a Committee on 30 April, 1992 to
B investigate into the possible irregularities in funds
management by commercial banks and financial institutions,
and in particular, in relation to their dealings in Government
securities, public sector bonds and similar instruments. The
Committee was required to investigate various aspects of the
transactions of SBI and other commercial banks as well as
C financial institutions in this regard.”
117. 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
D Commissions of Inquiry Act, 1952. The next case relied on by the
respondents is judgment of this Court in Common Cause : A Registered
Society vs. Union of India, 2017 (7) SCC 158.
118. In the above judgment, this Court has referred to
Parliamentary Standing Committee Report in paragraphs 14 and 16. In
E 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
F 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 the Parliamentary Standing Committee would
therefore not be sacrosanct. The same, in any case, does not
G have any material bearing on the validity of the existing
provisions of the Act.”
119. The above judgments do not lend support to the submission
of the respondents that Parliamentary Standing Committee Report cannot
be taken as evidence in the Court or it cannot be looked into by the
Court for any purpose.
H
KALPANA MEHTA v. UNION OF INDIA 239
[ASHOK BHUSHAN, J.]

I. SEPARATION OF POWERS AND MAINTAINING A A
DELICATE BALANCE BETWEEN THE LEGISLATURE,
EXECUTIVE AND JUDICIARY
120. The essential characteristic of a Federation is a distribution
of limited Executive, Legislative and Judicial authority and the supremacy
of Constitution. Justice B. K. Mukherjea, Chief Justice, in Ram Jawaya B
Kapur Vs. State of Punjab, AIR 1955 SC 549 referred to essential
characteristics of Separation of Powers in the Indian Constitution. In
Para 12, following has been held:-
“....The Indian Constitution has not indeed recognised the doctrine
of separation of powers in its absolute rigidity but the functions of C
the different parts or branches of the Government have been
sufficiently differentiated and consequently it can very well be
said that our Constitution does not contemplate assumption, by
one organ or part of the State, of functions that essentially belong
to another.....”
D
121. Separation of powers between Legislative, Executive and
Judiciary has been regarded as basic feature of our Constitution in
Kesavananda Bharti Vs. State of Kerala, AIR 1973 SC 1461. The
Constitution does not envisage supremacy of any of the three organs of
the State. But, functioning of all the three organs is controlled by the
Constitution. Wherever, interaction and deliberations among the three E
organs have been envisaged, a delicate balance and mutual respect are
contemplated. All the three organs have to strive to achieve the
constitutional goal set out for ‘We the People’. Mutual harmony and
respect have to be maintained by all the three organs to serve the
Constitution under which we all live. These thoughts were expressed by F
this Court time and again. Suffice it to refer, Constitution Bench of this
Court in Special Reference No. 1 of 1964 where Gajendragadkar,
CJ., laid down the following:
“In this connection it is necessary to remember that the status,
dignity and importance of these two respective institutions, G
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
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240 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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.”
B
122. 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
C 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
sovereignty in England and Constitutional supremacy in this country. It
is well settled that any law made by Parliament, which violates the
D fundamental rights guaranteed under Part III of the Constitution, can be
set aside by this Court in exercise of Jurisdiction of judicial review which
has been granted by the Constitution to this Court. Parliamentary
sovereignty, as enjoyed by the United Kingdom is not a parallel example
in reference to functioning of different organs in this country, as controlled
by the Constitution of India. The parliamentary privilege, as guaranteed
E under Article 9 of Bill of Rights, (1688) that no proceeding of Parliament
can be questioned and impeached thus has to be applied, subject to express
constitutional provisions as contained in Constitution of India.
123. We thus conclude that although, there is no rigid separation
of powers under the Constitution of India, but functions of all the three
F wings have been sufficiently differentiated and each has freedom to
carry out its functions unhindered by any other wing of the State.
However, in functioning of all the three organs, a delicate balance, mutual
harmony and respect have to be maintained for true working of the
Constitution.
G J. ARTICLE 121 & ARTICLE 122 OF THE
CONSTITUTION OF INDIA
124. Relying on Article 121 and Article 122 of the Constitution of
India, it has been contended by the learned Attorney General as well as
other learned counsel appearing for the respondents that principle
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KALPANA MEHTA v. UNION OF INDIA 241
[ASHOK BHUSHAN, J.]

enshrined in the above-mentioned articles do suggests that Court has to A
keep away from entertaining any challenge to any parliamentary
proceeding, including a Parliamentary Committee Report.
125. Although, heading of Article 122 reads ‘Courts not to enquire
into proceedings of the Parliament’ but substantive provision of
Constitution, as contained in sub-clause (1) of Article 122 debars the B
Court from questioning the validity of any parliamentary proceeding on
the ground of any alleged irregularity or procedure. The embargo on the
Court to question the proceeding is thus limited on the aforesaid ground
alone. There is no total prohibition from examining the validity of the
proceeding if the proceedings are clearly in breach of fundamental rights
or other constitutional provisions. Constitution Bench in Special Reference C
No. 1 of 1964 (supra), while considering the scope of Article 194 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 D
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 E
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, F
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 plenary G
powers, they function within the limits prescribed by the
material and relevant provisions of the constitution.”
126. As observed above, the Constitution of India empowers this
Court in exercise of judicial review to annul the legislation of a Parliament
if it breaches the fundamental rights, guaranteed under Part III of the H
242 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Constitution. Thus, the privileges which are enjoyed by the Indian
Legislature have to be considered in light of the provisions of the Indian
Constitution. These are the clear exceptions to the parliamentary
privileges, as applicable in House of Commons on the strength of Article
IX of Bill of Rights, 1688. This Court in Special Reference No. 1 of
1964 (Supra) noticing the different constitutional provisions referred to
B
various privileges which although were enjoyed by the House of
Commons, but are no longer available to the Indian Legislature.
127. The power of judicial review enjoyed by this Court in reference
to legislation and some parliamentary proceedings are recognised
exceptions, when this Court can enter into parliamentary domain. In all
C other respects, parliamentary supremacy with regard to its proceedings,
the procedure followed has to be accepted.
128. In view of the above foregoing discussion, we are of the
view that on the strength of Article 122, it cannot be contended that
Parliamentary Standing Committee Reports can neither be admitted in
D evidence in Court nor the said reports can be utilised for any purpose.
K. COMMENTS ON REPORTS OF PARLIAMENTARY
COMMITTEE WHETHER BREACH OF PRIVILEGE
129. The freedom of speech and expression is one of the most
E cherished fundamental rights guaranteed and secured by the Constitution
of India. As early as in 1950 Patanjali Sastri, J., in Romesh Thappar vs.
The State of Madras, 1950 SCR 594, stated :
“freedom of speech and of the press lay at the foundation of
all democratic organisations, for without free political
F discussion no public education, so essential for the proper
functioning of the processes of popular government, is
possible.”
130. Again this Court in Bennett Coleman & Co. and Ors. Vs.
Union of India (UOI) and Ors. , AIR 1973 SC 106 (150), held:
“Freedom of the Press is the Ark of the Covenant of Democracy
G
because public criticism is essential to the working of its
institutions.” No organ of the state, be it Judicature, Executive or
Legislature is immune from public criticism; public criticism is an
instrument to keep surveillance and check on all institutions in a
democracy.
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KALPANA MEHTA v. UNION OF INDIA 243
[ASHOK BHUSHAN, J.]

131. In Wason v. Walter (supra) Cockburn CJ., stated: A
“....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....” B
132. 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 C
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 D
and motives of public men has only in very recent times been
recognized. Comments on government, on ministers and
officers of state, on members of both houses of parliament,
on judges and other public functionaries, are now made every
day, which half a century ago would have been the subject
of actions or ex officio informations, and would have brought E
down fine and imprisonment on publishers and authors. Yet
who can doubt that the public are gainers by the change,
and that, though injustice may often be done, and though
public men may often have to smart under the keen sense of
wrong inflicted by hostile criticism, the nation profits by public F
opinion being thus freely brought to bear on the discharge of
public duties?....”
133. In reference to ‘parliamentary privilege’, House of Lords
after due consideration of Article 9 of Bills of Right 1888 in Pepper v.
Hart (House of Lords) 1993 AC 593, laid down : ‘Article 9 cannot G
have effect, so as to stifle the freedom of all to comment on what is said
in Parliament, even though such comment may influence members in
what they say.’ What is said in Parliament is thus clearly subject to fair
comments by all including Press.

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244 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 134. A Constitution Bench of this Court in M.S.M. Sharma vs.
Sri Krishna Sinha and others, AIR 1959 SC 395, had occasion to
consider parliamentary privileges in reference to publication of a speech
delivered by a Member of Bihar Legislative Assembly, commonly known
as Search Light Case. In his speech, Member of Bihar Legislative
Assembly made critical reference to an ex-Minister of Bihar. The Speaker,
B
on a point of order raised by another Member directed expunging of
certain words stated with regard to ex-Minister. However,
notwithstanding the Speaker’s direction of expunging the portion of the
speech, the Search Light, in its issue dated 31st May, 1957, published a
complete report of the speech of the Member including the portion which
C was directed to be expunged, a notice was given to the Editor of the
Search Light, Shri Sharma, to show cause as to why appropriate action
be not recommended for breach of privilege of the Speaker and the
Assembly in respect of the offending publication. Shri Sharma, Editor
filed writ petition under Article 32 contending that the said notice and
the proposed action is in violation of his fundamental right to freedom of
D
speech and expression under Article 19(1)(a). This Court held that
principle 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
E facie, constituting a breach of 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
F 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
G 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 breach of the
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KALPANA MEHTA v. UNION OF INDIA 245
[ASHOK BHUSHAN, J.]

privilege of the House, for of that the House along is the A
judge.”
135. The freedom of speech and expression as guaranteed under
Article 19(1)(a) is available to a citizen to express his opinion and
comment which is also available with regard to court proceedings as
well. In respect of Parliamentary proceedings, the said right is not stifled B
unless the comment amounts to reflection or personal attack on individual
Member of Parliament or to the House in general. In this context reference
is also made to a judgment of House of Lords in Adam v. Ward, 1917
AC 309, where proceedings of Parliament were published containing a
slander remark on a servant of the Crown. An enquiry was conducted
with regard to imputation and report was published for vindication of the C
honour of the servant. Following was laid down by Lord Atkinson of
House of Lords:
“I think it may be laid down as a general proposition that
where a man, through the medium of Hansard’s reports of the
proceedings in Parliament, publishes to the world vile slanders D
of a civil, naval, or military servant of the Crown in relation
to the discharge by that servant of the duties of his office he
selects the world as his audience, and that it is the duty of the
heads of the service to which the servant belongs, if on
investigation they find the imputation against him groundless, E
to publish his vindication to the same audience to which his
traducer has addressed himself. In my view the Army Council
would have failed in their duty to General Scobell personally,
and to the great Service which they in a certain sense govern
and control, if they had not given the widest circulation to the
announcement of the General’s vindication.” F

136. In R v. Murphy, 1986 (5) NSWLR 18, Hunt, J. held that
what is said and done in Parliament can without any breach of
parliamentary privilege be impeached and questioned by the exercise by
ordinary citizens of their freedom of speech. Following was held:
G
“I have already pointed out that what is said and done in
parliament can without any breach of parliamentary privilege
be impeached and questioned by the exercise by ordinary
citizens of their freedom of speech (whether or not in the
media), notwithstanding the fear which such conduct may
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246 SUPREME COURT REPORTS [2018] 4 S.C.R.

A engender in members of Parliament (and committee witnesses)
as to the consequences of what they say or do. In those
circumstances, 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
B
such members (or witnesses) by the proceedings in question.”
137. 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
C 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 langauage
of the comment is vulgar or abusive, they cannot be deemed
to come within the bounds of fair comment or justifiable
criticism”.
D
(As quoted in “Press and Parliament” by A.N. Grover in
J.C.P.S.VXIII 1984 at p.141.)
138. Erskine May in ‘Parliamentary Practice’ (Twenty Fourth
Edition) defines contempt in the following words:
E “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 discharge of his duty, or which
has a tendency, directly or indirectly, to produce such results,
F may be treated as a contempt even though there is no precedent
of the offence.”
139. Referring to a case, Burdett v. Abbot, (1811) 104 ER 559,
561, this Court in Special Reference No.1 of 1964, (1965) 1 SCR
413, stated as follows:
G “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
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KALPANA MEHTA v. UNION OF INDIA 247
[ASHOK BHUSHAN, J.]

important constituent of a democratic State, must function not A
in antinomy 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 held the
peaceful development, growth and stablisation of the
B
democratic way of life in this country.”
140. This Court in the Special Reference case also had observed
that the caution and principle which are kept in mind by the courts while
punishing for contempt are equally true to the Legislatures also. Following
observations were made by this Court:
C
“Before we part with this topic, we would like to refer to one
aspect of the question relating to the exercise of power to
punish for contempt. So far as the courts are concerned,
Judges always keep in mind the warning addressed to them
by Lord Atkin in Andre Paul v. Attorney-General of Trinidad,
AIR 1936 PC 141. Said Lord Atkin, “Justice is not a cloistered D
virtue; she must be allowed to suffer the scrutiny and
respectful even though out-spoken comments of ordinary
men.” 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 E
use of this power in anger or irritation would not help to
sustain the dignity or status of the court, but may sometimes
affect it adversely. Wise Judges never forget that the best way
to sustain the dignity and status of their office is to deserve
respect from the public at large by the quality of their
judgments, the fearlessness, fairness and objectivity of their F
approach, and by the restraint, dignity 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.”
141. The power to punish for contempt is a privilege available to G
Parliament which is defined as ‘keynote of Parliamentary Privileges’.
142. 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,
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248 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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.
143. In the present case, learned counsel for the respondents have
B 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 in making fair comments on the Parliamentary
C Committee Report which comments remain within the bounds of a fair
comments and does not transgress the limits prescribed for fair comments.
The Parliamentary Committee Reports when published, the press are
entitled to make fair comments. We fail to see any reason prohibiting
the parties who were referred to in the Parliamentary Committee Report
D to make such fair comments or criticism of the Report as permissible
under law without breach of privilege.
L.ADJUDICATION IN COURTS AND PARLIAMENTARY
COMMITTEE REPORT
144. ‘Adjudication’ is the power of Court to decide and pronounce
E a judgment and carry it into effect between the persons and parties who
bring a cause before it for a decision. Both for civil and criminal cases
people look forward to Courts for justice. To decide controversy between
its subject had always been treated as a part of sovereign functions.
Constitutional law developments emphasised separation of powers of
F Governmental functions for protecting rights and liberties of people.
145. Montesquieu in L’Esprit des Lois, 1748, the modern
exponent of the doctrine of separation of powers states:
“When the legislative and executive powers are united in the
same person, or on the same body or Magistrates, there can
G be no liberty. Again, there is no liberty if the judicial power is
not separated from the legislative and executive powers. Were
it joined with the legislative power, the life and liberty of the
subject would be exposed to arbitrary control; for the Judge
would then be the legislator. Were it joined with the executive
power, the judge might behave with violence and oppression.
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KALPANA MEHTA v. UNION OF INDIA 249
[ASHOK BHUSHAN, J.]

There would be an end of everything were the same man or A
the same body to exercise these three powers...”.
146. In our Constitution although there is no strict separation of
powers of the three branches that is Legislature, Judicature and Executive
but Constitutional provisions entrust separate functions of each organ
with clarity which makes it clear that our Constitution does not B
contemplate assumption by one organ function which belongs to another
organ of the State. A nine-Judge Constitution Bench in I.R. Coelho
(Dead) by LRs. v. State of Tamil Nadu, 2007 (2) SCC 1, while dealing
with the separation of powers stated following in paragraphs 64, 65 and
67:
C
“64. In fact, it was settled centuries 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 D
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 E
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. F
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
G
peculiarly essential in a limited Constitution. By a limited
Constitution, I understand one which contains certain
specified exceptions to the legislative authority; such, for
instance, that it shall pass no bills of attainder, no ex post
facto laws, and the like. Limitations of this kind can be
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250 SUPREME COURT REPORTS [2018] 4 S.C.R.

A preserved in practice in no other way than through the medium
of courts of justice, whose duty it must be to declare all acts
contrary to the manifest tenor of the Constitution void. Without
this, all the reservations of particular rights or privileges
would amount to nothing.” (434)
B 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 recognized by this Court in
Special Reference No.1 of 1964, (1965) 1 SCR 413.”
C
147. Adjudication of rights of the people is a function not entrusted
to the Legislature of the country. Apart from legislation our Parliament
has become multi-functional institution performing various roles, namely,
inquisitorial, financial and administrative surveillance, grievance redressal
and developmental. Parliament, however, is not vested with any
D adjudicatory jurisdiction which belongs to judicature under the
Constitutional Scheme. This Court in State of Karnataka v. Union of
India, 1977 (4) SCC 608, while considering Articles 105 and 194 of
the Constitution of India laid down following:
“Our Constitution vests only legislative power in Parliament
E as well as in the State Legislatures. A House of Parliament or
State Legislature cannot try anyone or any case directly, as a
Court of Justice can, but it can proceed quasi-judicially in
cases of contempt of its authority and take up motions
concerning its “privileges” and “immunities” because, in
F doing so, it only seeks removal of obstructions to the due
performance of its legislative functions. But, it any question
of jurisdiction arises as to whether a matter falls here or not,
it has to be decided by the ordinary courts in appropriate
proceedings. For example, the jurisdiction to try a criminal
offence, such as murder, committed even within a House vests
G in ordinary criminal courts and not in a House of Parliament
or in a State Legislature.”
148. The function of adjudicating rights of the parties has been
entrusted to the constituted courts as per Constitutional Scheme, which

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KALPANA MEHTA v. UNION OF INDIA 251
[ASHOK BHUSHAN, J.]

adjudication has to be made after observing the procedural safeguards A
which include right to be heard and right to produce evidence.
149. In Dingle v. Associated Newspapers Ltd. and Others
(supra) in a case of damages for libel where defendants relied on
Parliamentary Committee Report published, Pearson, J., laid down as
follows: B
“...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, C
different issues before it, and having received different
evidence and a different presentation of the case.”
150. 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 D
Committee Report in evidence doest 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 the basis of evidence
and materials brought before it and in which adjudication Parliamentary
Committee Report may only be one of the materials, what weight has to
be given to one or other evidence is the adjudicatory function of the E
Court which may differ from case to case. The Parliamentary Committee
Reports cannot be treated as conclusive or binding of what has been
concluded in the Report. When adjudication of any claim fastening any
civil or criminal liability on an individual is up in a Court of law, it is open
for a party to rely on all evidences and materials which is in its power F
and Court has to decide the issues on consideration of entire material
brought before it. When the Parliamentary Committee Report is not
adjudication of any civil or criminal liability of the private respondents,
their fear that acceptance of report shall prejudice their case is unfounded.
We are, thus, of the opinion that by accepting Parliamentary Committee
Report on the record in this case and considering the Report by this G
Court, the respondents’ right to dispel conclusions and findings in the
Report are not taken away and they are free to prove their case in
accordance with law.

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252 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 151. OUR CONCLUSIONS
(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
B 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
C 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
D 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
E 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.
(v)That mere fact that document is admissible in evidence whether
a public or private document does not lead to draw any
F 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’
G
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
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KALPANA MEHTA v. UNION OF INDIA 253
[ASHOK BHUSHAN, J.]

be binding between the parties. The parties are at liberty to A
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. B
When there is no breach of privilege in considering the
Parliamentary materials and reports of the Committee by the
Court for the above two purposes, we fail to see any valid
reason for not accepting the submission of the petitioner that
Courts are not debarred from accepting the Parliamentary
materials and reports, on record, before it, provided the Court C
does not proceed to permit the parties to question and impeach
the reports.
(viii)The Constitution does not envisage supremacy of any of the
three organs of the State. But, functioning of all the three organs
is controlled by the Constitution. Wherever, interaction and D
deliberations among the three organs have been envisaged, a
delicate balance and mutual respect are contemplated. All the
three organs have to strive to achieve the constitutional goal
set out for ‘We the People’. Mutual harmony and respect have
to be maintained by all the three organs to serve the Constitution E
under which we all live.
(ix)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 F
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, G
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.
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254 SUPREME COURT REPORTS [2018] 4 S.C.R.

A (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.
B 152. The questions having been answered as above, let these writ
petitions be listed before the appropriate Bench for hearing.

Nidhi Jain Referred issue answered.

C

D

E

F

G

H