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(In this Guest Post, through an analysis of the Kalpana Mehta judgment, Karan Lahiri argues that the divide between “conservative” and “transformative” Constitutions/constitutional provisions is simplistic, and misses a crucial, third kind of constitutional clause: that which serves as a “gateway to transformation.” This three-pronged typology is truer to the Constitutional text, structure, history, and philosophy.)

In May this year, a Constitution Bench of the Supreme Court pronounced its decision in Kalpana Mehta & Ors. v. Union of India & Ors., where it ruled on a question impacting the horizontal separation of powers between legislature and judiciary: namely the extent to which the Supreme Court could rely upon a Parliamentary Standing Committee Report (“PSC Report”). The Court was, essentially, called upon to identify whether, and at what point, such reliance impinged upon legislative privilege. [A post on this blog has provided some background on the issues involved.]

The Kalpana Mehta Judgment

Two questions had been referred to this bench of five judges by an Order of April 05, 2017: –

“(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 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 parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?”

The case involved the licensing and testing of certain vaccines designed to prevent cervical cancer. The Petitioners sought to rely on proceedings before a Parliamentary Standing Committee to establish, among other things, irregularities in clinical trials. The problem before the Court was that if this Report was relied on by one party as evidence of such irregularities, the contents of the Report would become contentious. The other party would dispute them, and the Court would be forced to examine the correctness of the statement made before the Committee as also the correctness of the Report itself. This is a prerogative that the rules of parliamentary privilege reserve for Parliament alone, since such Committees are limbs of Parliament and their Reports constitute advice to the House (as per the Rules of Business). Therefore, reliance by one party would trigger an institutional conflict between legislature and judiciary. This is why the Supreme Court had to clearly define situations where such conflict would not occur, and carve out a set of cases where such reliance on PSC Reports was permissible.

By way of example, let us imagine a situation where a PSC was looking into the felling of trees in Central and South Delhi. A reputed environmentalist deposes before the Committee that 16,000 trees have been cut down illegally. An NGO then files a PIL before the Supreme Court on the strength of this PSC Report, and the statement contained in the Report. The Government appears before the Court and contests the veracity of the statement that 16,000 trees were felled, and produces conflicting evidence that only 420 trees were felled after obtaining all the requisite clearances. This would place the Court in a position where it would be impinging upon the powers of Parliament, because the truth of a statement made before one of its Committees can only be questioned before Parliament itself, with possible consequences (such as proceedings for contempt of the House) following as a result. Similarly, only Parliament can deliberate upon the correctness of the advice provided by a PSC. Drawing a line between the powers of the judiciary and prerogative of Parliament is, therefore, critical, particularly in an age where the Supreme Court is sometimes acting as a fact-finding trial court, arguably going beyond its role and institutional competence as a constitutional court.

In deciding the reference, the Court handed down three plurality opinions – Chief Justice Misra wrote for himself and Justice Khanwilkar; Justice Sikri signed on to Justice Chandrachud’s opinion; and, Justice Ashok Bhushan wrote a separate opinion. As usual, this brings up the question of what the decision ultimately laid down. Based on my reading, the following points emerge: –

  • All five judges agreed that a PSC Report can be used as an external aid to statutory interpretation, to throw light on legislative history, on the policy problem (referred to by lawyers as the “mischief“) sought to be addressed by a statute etc. In other words, it could be used to give context to the interpretation of statute that was deliberated upon before the Committee.
  • The Court also held that judicial notice can be taken of proceedings in Parliament under Section 57(4) of the Indian Evidence Act, and this can serve as proof of the existence of the report, statements made in Parliament, historical facts etc.
  • The CJI and Justice Khanwilkar, on one hand, and Justice Chandrachud and Sikri, on the other, agreed on the point that a PSC Report cannot constitute substantive evidence of underlying facts, as such facts (for instance, facts in respect of the conduct of an individual) would be contentious (triggering the issue of privilege) and, therefore, the Court would have to adjudicate on the basis of other evidence [See Paragraphs 124-127, 138(iii), 138(iv) of the CJI’s opinion; Paragraphs 67, 74, 74(iii) of Justice Chandrachud’s opinion]. On this point, Justice Bhushan was in the minority, as he seemed to hold (at Paragraph 150 of his opinion) that a PSC Report can be one of the pieces of evidence used to prove underlying facts.
  • According to Justice Chandrachud (with Justice Sikri), a Parliamentary Standing Committee Report can be used to hold the State and its agencies accountable, particularly in the Court’s PIL jurisdiction. This is because, according to them, there is a functional complementarity between the Courts and the Committees in this regard, However, they were in the minority on this point, as no other judge seems to have a special carve-out in respect of government accountability. [See Paragraph 65-66 in Justice Chandrachud’s opinion]

As I was involved in the litigation, I will refrain from commenting on the outcome of the case, focusing instead on one specific aspect, namely Justice D.Y. Chandrachud’s vision of a “transformative” Constitution, and how he views the moment of creation of our Constitution as a break with the past. I believe this is particularly significant because he is a member of the Constitution Bench that recently heard the correctness of the 2013 decision in Suresh Kumar Koushal v. Naz Foundation (which had upheld the constitutionality of S. 377 IPC), as also part of another bench deciding whether it is constitutional for women of menstruating age to be banned from entering the Sabarimala temple. One side in both cases would be relying on an interpretation of the Constitution as a transformative document: first, to argue that our Constitution marked a break from Victorian morality that demanded criminalization of homosexuality (replacing it with a constitutional morality of choice where every individual could love without fear of the police State); and also, that it left behind an archaic religious morality that permitted menstruating women to be branded as impure, excluding them from an aspect of society (i.e. worship) based on immutable personal traits in a manner categorically similar to “untouchability” (as argued here on this blog).

Questioning the “Transformative Constitution”

I believe, however, that Justice Chandrachud’s emphasis on transformation, as fascinating as it may be, is actually incorrect in this particular case, because the provisions that fell for consideration in the Kalpana Mehta case explicitly establish continuities with the past. The main provision that the Court was considering is Article 105 of the Constitution, which reads:

“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 standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings

(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty fourth Amendment) Act 1978

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this constitution have the 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.”

[NOTE: Article 194 is the corresponding provision for State legislatures.]

It would be reasonable to ask why an issue of privilege would arise with respect to a Parliamentary Standing Committee Report, given that nothing in Article 105 seems to explicitly bar judicial scrutiny or consideration of such reports. The answer lies in the continuities explicitly created by Article 105(3), which become apparent when one looks at its drafting history. The following table highlights the amendments that Article 105(3) went through over the years.

Original Provision Text post 42nd Amendment Present version post the 44th Amendment
(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members 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 Parliament of the United Kingdom, and of its members and committees, at the commencement of the Constitution. (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 those of that House and of its members and committees immediately before the coming into force of section 21 of the Constitution (42nd Amendment) Act, 1976, and as may be evolved by such House of Parliament from time to time. (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 and of its members and committees as immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

 

Section 21 of the Constitution (42nd Amendment) Act never came into force, as the Congress Government was replaced the by the Janata Alliance in 1977 before the provisions could be formally notified. Therefore, the original provision continued until 20.06.1979, when the 44th Amendment Act brought into force the present version of Article 105(3). The amendment, however, is nothing more than semantics, merely replacing the reference to the “House of Commons of the Parliament of the United Kingdom” with a reference to the privileges “of the House and of its members and committees as immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978”. As the Indian Parliament had made no law defining parliamentary powers, privileges and immunities as on the date that the 44th Amendment was enacted, the privileges which existed before the coming into force of the 44th Amendment Act were basically those that were created by the original provision, namely the rules applicable in the British House of Commons as on the date of commencement of the Constitution. [Both the table above, and the history of the provision, are from D.D. Basu, Commentary on the Constitution of India, Vol. 4, Pg. 5034 (8th edn., LexisNexis Butterworths Wadhwa)].

I would like to highlight four things, at this point, which become evident on reading the table given above: –

  • First, our privilege rules are the same as those of the British House of Commons.
  • Second, the original Article 105(3) explicitly referred to the British House of Commons.
  • Third, the provision place the onus on future legislatures to transform the rules of privilege and break from the traditions of the House of Commons, a duty that our Parliament has, sadly, ignored.
  • Finally, the 42nd Amendment allowed room for a second avenue for homegrown rules of privilege (other than an explicit law) evolved through Parliamentary practice when it referred to rules “as may be evolved by such House of Parliament from time to time.” This was explicitly eviscerated by the 44th Amendment, once again establishing a continuity, which did not allow for transformation through parliamentary practice.

It is because of these explicit continuities that the questions referred to the Constitution Bench in the Kalpana Mehta case arose in the first place. As is evident from the Order of April 05, 2017, as also the final judgment of the Court, the Respondents, while making their case for exclusion of the Report, referred to precedents from the United Kingdom to formulate the proposition that records of parliamentary proceedings cannot constitute proof of underlying facts, and that records of parliamentary proceedings (including PSC Reports) cannot be relied on in a Court such that the contents of the same become contentious.  Take, for instance, the decision of the Queen’s Bench in Church of Scientology of California v Johnson-Smith, (1972) 1 Q.B. 522 where it was held that “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 purpose here is not to exhaustively examine decisions on privilege from the U.K. Such examination was carried out by the Court in the Kalpana Mehta judgment, and the correctness of their conclusion on this aspect is not something I am examining in this essay. The point here is that such examination was required precisely because of the colonial continuities established by Article 105(3), which ties our rules of privilege to those prevalent in the British House of Commons, and the Court ought to have confined itself to this alone. In other words, the questions before the Court should have been answered in two steps: –

  • Step 1: Read Article 105(3).
  • Step 2: Refer to parliamentary practice in the British House of Commons based on the explicit text and legislative history of Article 105(3), and whether there is are equivalent principles in the U.K. which would throw light on the circumstances in which a PSC Report could or court not be relied upon.

In fact, the reference to the British House of Commons in Articles 105 and 194 (Article 85 and 169 of the Draft Constitution of 1948) was actually debated in the Constituent Assembly (on 19.05.1949 and 03.06.1949 respectively). H.V. Kamath sought to move an amendment to delete this reference when the provision was debated on 19.05.1949, stating that “it is far better to build our own solid ground, rather than rely on the practices obtaining in other countries.” Naziruddin Ahmad said that “after Independence, we cannot relate our rights to those available to the Members of the House of Commons. Various members (such as Prof. Shibban Lal Saksena and Dr. P.S. Deshmukh) sought inclusion of an Appendix or a Schedule, clearly delineating the privileges to be enjoyed by legislators in India. The response came from Alladi Krishnaswami Ayyar (with whom Dr. Ambedkar concurred). He mentioned that similar provisions exist in Australia and Canada, stressing on the “widest privileges” as exercised by Members of Parliament in England. He also said that a Committee had attempted to catalogue parliamentary privileges, but this effort failed as time was insufficient. Most importantly, he stressed on the fact that this was a “temporary measure” and that “[t]here is nothing to fetter the discretion of the future Parliament of India.” From the debates, therefore, it is starkly evident that, firstly, despite the protests of a few members, the incorporation by reference of the privileges enjoyed by the House of Commons in the U.K. was retained by our Constituent Assembly and, secondly, despite this ostensibly being a temporary measure, no subsequent Parliament has chosen to end the colonial continuities contained in Article 105(3), delineating privilege rules for an Independent India, despite almost 68 years having passed since the Constitution was adopted. Both the Constituent Assembly and Parliament have, therefore, deliberately eschewed transformation in this particular case.

Gateways to Transformation

Let us now look at Justice Chandrachud’s exposition on our transformative Constitution in the Kalpana Mehta judgment. He states: –

71. 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 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 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 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. 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 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 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.

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 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 lead us to hold that the court must act oblivious to the content of the report. [Emphasis supplied]

I fear that this exposition, enlightening as it may be while interpreting other portions of the Constitution, lacks precision when it comes to parliamentary privileges. To be fair, he does not ascribe a transformational purpose to Article 105. What he does, however, is employ a line of reasoning which would potentially render meaningless the text of Article 105. If we parse his reasoning, and break it down, it would go something like this:

  • A literal interpretation of the Constitution in this case would be superficial. We must look at the larger transformation purpose of the Constitutional, which empowers individuals.
  • One of the ways in which the Constitution empowers individuals is to given then the right to remedy injustice by approaching Courts. [Notice that he does not place any particular fundamental right in conflict with Article 105(3) or the privilege rules of the U.K.]
  • When the work of inquiring into the causes of such injustice has been carried out by a coordinate institution, there is no reason why a Court should not rely on the product of such inquiry.

As appealing as this may appear, there are huge problems with this line of reasoning. First, a larger transformational purpose cannot be used to distort the explicit language of Article 105, which clearly establishes a colonial continuity by referring to the privilege rules of the British House of Commons. The statement that “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” is in conflict with Article 105(3) itself, which explicitly draws from our colonial past and incorporates by reference the rules of privilege prevalent in Britain prior to the adoption of the Constitution. Second, in this particular case, it is not even clear as to how Justice Chandrachud would read Article 105 differently in light of the Constitution’s transformative purpose. My only guess is that he is driving towards a principle where we ignore certain privilege rules in the U.K. if they conflict with this larger, amorphous idea of a transformative Constitution. Third, the fact that individuals approach Courts to remedy injustice does not really assist us in determining the extent and limits of privilege. To remedy such injustice, a constitutional Court cannot expand its powers and trample upon the prerogatives of Parliament. Putting it another way, a constitutional form of government also protects the individuals from the legislature, executive or judiciary assuming powers beyond those granted by the Constitution. The horizontal separation of powers between judiciary and legislature cannot be disturbed on the reasoning that the individual approaches one forum directly for redress. Finally, the purpose of inquiry by a Parliamentary Standing Committee is to advise Parliament, which then deliberates on ameliorating injustice through legislation. Courts have independent fact-finding powers – especially our Supreme Court which routinely forms SITs and other such inquisitorial committees. The fact that a PSC is inquiring into the same injustice as a constitutional Court does not, in itself, justify the conclusion that “there is no reason why a Court should not rely on the product of such inquiry” because, if there is a conflict with the rules of privilege, that provides an absolute reason to preclude reliance.

I believe that Justice Chandrachud’s idea of transformative Constitution is a powerful one. It will, however, come to be identified as shorthand for judicial overreach if it is not deployed in a consistent and intellectually rigorous manner. Certain provisions in our Constitution, such as Article 17, are pregnant with transformative purpose. Others, especially those derived from the Government of India Act, 1935, establish colonial continuities. There is a third category, like Article 105(3) that provides a gateway to transformation, by placing a responsibility upon Parliament to lay down new rules for an independent India (in this case, a charter of privileges derived from post-Independent experimentation), preserving colonial continuities as a temporary measure until Parliament rises to the occasion. Our courts should, perhaps, acknowledge the patchwork nature of our Constitution in interpreting it, to preserve its truest meaning.