A critical issue of whether the Supreme Court can consider as a reference point a report prepared by a Parliamentary standing committee on a particular issue has been referred to a constitution bench by a two judge bench comprising Chief Justice Dipak Misra and Justice Rohingtan Nariman.
The constitution bench formed for this purpose – comprising Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan – has been asked to answer two questions.
- Whether in a litigation, filed before the Supreme Court, either under Article 32 or Article 136 of the Constitution 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 vis-à-vis Parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?
The issue emanated from the original hearing, by the two-judge bench, of a matter relating to the action taken by the Drugs Controller General of India and the Indian Council of Medical Research pertaining to the approval of a vaccine (Human Papilloma Virus (HPV) manufactured by Glaxo SmithKline and MSD Pharmaceuticals Private Limited.
This medicine is for preventing cervical cancer in women and the experiments of the vaccine done with the charity provided by Path International as an immunization by the Government of Gujarat and Andhra Pradesh. The case arose with the untimely death of certain persons.
In the course of proceedings, attention of the court was drawn to the 81st Report of December 22, 2014 of the Parliamentary Standing Committee.
At that time an issue was raised from the bar as to whether the court, while exercising the power of judicial review or its expansive jurisdiction under Article 32 dealing with the public interest litigation, can refer to the report of the Parliamentary Standing Committee and issue direction on the basis of that.
Senior Advocate Harish Salve, appearing for one of the pharmaceutical companies, had read a few parliamentary reports. He submitted that these reports cannot be relied upon. These reports contain very strong views of people.
He had said: “Parliamentary privileges are not something to be looked into by courts. The current situation in English courts is that you cannot compromise parliamentary privilege. My main issue is, can a parliamentary standing committee report be looked at for the purpose of reference in a litigation filed before this court, either under Article 32 or Article 136 of the Constitution of India?”
On Wednesday (October 25) Salve said: “Framers of the constitution had framed it in such a way that the judiciary and the legislative can work independently. No one will interfere with each other. The legislature will not interfere with judiciary unless in the case of impeachments.”
Justice Chandrachud observed: “There are two things in this – one is, what is said in Parliament by the parliamentarian. The second is the product of that debate. As far as first one is concerned, that may be beyond judicial scrutiny, but in the second case the final product out of that debate is under judicial scrutiny. Reports are part of a legislative product. Then why can’t these reports be scrutinised by the court?”
The arguments will continue.
—India Legal Bureau