Posted on 26.10.17 by Satya Prasoon
On 24.10.2017, the second day of hearings in Kalpana Mehta v UOI continued before the 5 Judge bench comprising of Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan.
Mr. Harish Salve appearing for the respondents, continued the argument that Parliamentary Standing Committee Report (PSCR) can’t be relied upon by the Apex Court. He argued that as the nature and functions of two institutions are different – Parliament being legislative and Court being adjudicatory, the PSCR cannot be relied on by the court as it was part of parliamentary proceedings. He continued, PSCR was a macrocosm of the House and enjoyed the same protection under Parliamentary Privileges as the House. Being delegates of Parliament, PSCR members could not be questioned in any forum about what they disclosed to the Committee.
Chief Justice Dipak Misra enquired if PSCR could be relied upon once it was published and in the public domain. Mr. Salve responded that on publication of PSCR, it could be relied on but only under two situations:- (i) to understand the legislative history of statute, if the language is obscure and (ii) as a tool to hold the executive accountable. He cited Rajya Sabha Rules 216, 217, 218, 219, 220, 274, 275 in support of the second situation.
Justice Chandrachud posed a hypothetical questions – if the court had noticed lacuna in law and thus adviced legislature to fill that lacuna and PSCR took congnisance of the same, then would the PSCR become judicially reliable?
Mr Salve responded by citing Rajya Sabha Rule 84 – power to take evidence or call for papers or documents and Rule 85- procedure to examine witnesses the only statutory instances where PSCR can be examined. It would be perilous, he argued, if the evidence taken under these Rules found its way into court. Mr Salve further buttressed his argument by giving the instance of 2G Scam where Joint Parliamentary Committee (JPC) found evidence against the accused in the 2G casebut trial court didn’t allow that as evidence and relied on other sources of evidence.
Justice Chandrachud asked if there the only evidence against the accused is a JPC report and there was no further investigation, then could the court order an investigation based on the content in the report? Mr. Salve answered in the negative. Justice Chandrachud further observed that the two exceptions where PSCR could be relied upon by the court might be too narrow and noted that there might be a third exception iii) to scrutinize the specific actions of public departments, as it was in this case. Mr. Salve replied that the standard test for relying on PSCR is whether contained contentious information, in which case it could not be used. Mr. Chandrachud persisted that more exceptions might be evolved on usage of PSCR by the courts and with this, the day’s proceedings came to an end. The matter was scheduled to be heard on 25.10.17.
(This post relies on contributions from Mr. Vijayant Singh)
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