Parliamentary Standing Committee Reports Can’t Be Subject Matter Of Judicial Proceedings, Argues Harish Salve

In the ongoing hearing before the Supreme Court’s five-Judge Constitution bench, on Kalpana Mehta v Union of India, senior counsel, Harish Salve, on Wednesday, submitted that a Parliamentary Standing Committee (PSC) Report is part of the product of Parliament, and is intended to assist Parliament in its working.  Therefore, he said, it cannot be the subject matter of judicial proceedings.

Nothing said in Parliament can be impeached elsewhere, and MPs have absolute right to free speech in Parliament, he argued.

The Chief Justice, Dipak Misra, who heads the five-Judge bench, also comprising Justices A.K.Sikri, A.M.Khanwilkar, D.Y.Chandrachud and Ashok Bhushan, observed that what the MPs debate in Parliament pertaining to a Bill can’t be challenged.  Salve agreed with Justice Ashok Bhushan that unmitigated powers are alient to the Indian Constitution, and that Constitution prevails over every institution.

Justice Chandrachud observed that while an MP is not answerable to courts, the final product of Parliament lends itself to judicial scrutiny, and if Parliament publishes a report, can it be construed as an extension of the freedom of speech of an MP, he asked.

To this, Salve replied that when the courts test legislation, they test law, and not what goes on in Parliament.   The Court declares a law, as violative of Constitutional rights, but it is not concerned with what went on in Parliament, he further argued.

It is the end product of the legislative exercise, that the court is concerned with, he submitted.

Salve clarified that PSC report can help in interpretation, to find out the Mischief Rule. It is a legislative material as to why a statute is enacted and has historical value, he said.

When Justice Chandrachud asked whether courts could rely on a PSC report, if it throws light on the manner in which a statute is implemented, Salve said the report of the committee has no legal consequence, even if it indicts the Government.  It is safe to say that it has persuasive value, as it is an advice to the House.

Salve has concluded his submissions.  The Attorney General, K.K.Venugopal is likely to begin his submissions on Thursday.

On October 12, Salve had submitted to the bench that in the case of co-equal institutions, one institution, that is, Judiciary, can’t evaluate the proceedings of the other, that is, Parliament, and that institutions regulate their own processes, and the scope of freedom of speech of their members.   Salve, who represents one of the respondents, submitted that petitioners can’t rely on PSC reports as evidence.   In the present matter, a PSC Report had specifically identified Salve’s clients as having violated certain laws, without hearing them, he contended. Salve also submitted that the distinction between reliance on a PSC report and impeaching it is a tenuous one, and blurring it is impermissible.