Won't stay away from issue just because Parliament is debating it: Supreme Court

The Supreme Court today made it clear that it would not stay away from an issue just because Parliament was debating it and would rather ensure that the people's rights are protected. 

The observation was made by a five-judge constitution bench headed by Chief Justice Dipak Misra which is hearing two petitions to decide questions including whether the court can rely on or refer to parliamentary committee reports in judicial proceedings. 

The issue whether a parliamentary panel report can be relied upon in judicial proceedings had arisen after the petitioners had referred to the 81st Report of Parliamentary Standing Committee, issued on December 22, 2014, allegedly indicating some pharma firms for conducting trials of the controversial Human Papilloma Virus (HPV) vaccine. 

"The power of judicial review remains unaffected...We would not stay our hands just because Parliament is debating an issue. We will proceed to ensure that people's rights are protected. You cannot say that this issue has been debated in Parliament, so stay away. No, we cannot do this," the bench, which also comprised Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, said. 

It said that the apex court can enforce its orders under Article 142 and ask for setting up of commissions, seek reports and order enquiry to ensure justice. 

At the outset, Attorney General (AG) K K Venugopal referred to the privileges of the House and its committees and the concept of separation of powers and said that no report of any committee of Parliament can be subjected to "judicial scrutiny or review". 

"The separation of power has been recognised as part of basic structure of Constitution," the top law officer said. 

In a parliamentary form of democracy, there is a doctrine of collective responsibility of the government and "the question is where do we draw the line. Like separation of power, the power of judicial review is also part of basic structure," the bench observed. 

"It is not that our power of judicial review gets affected. We can take up a case and do the needful on our own," it said, adding the issue was that can a PIL have an affidavit containing details of a report of a parliamentary committee. 

During the hearing, the AG said the Indian Supreme Court was the strongest court in the world as "the government of the day" respects it. He then submitted that at least 30 more fundamental rights have been created under Article 21 (Right to life and personal liberty) and most of them cannot be enforced. 

"Article 21 is worded negatively but Your Lordships have read at least 30 positive rights into it. And they cannot be enforced," Venugopal said. 

"It can be enforced. Take our orders for ensuring green environment. My learned brother judge, Justice Sikri's order ensured that we could breathe after Diwali," Justice Chandrachud said, adding that the order ensured compliance of right to clean environment as a fundamental right. 

On the issue whether parliamentary panel reports can be used in court, the AG said, "the Committees of Parliament being an essential adjunct to Parliament, and their reports being for the purpose of advising and guiding Parliament for framing laws and the Executive for framing policies, it would be a breach of privilege of Parliament to judicially scrutinise and/or review these reports for any purpose whatsoever." 

The broad separation of powers, which is a part of the basic structure of the Constitution, would prevent the courts from subjecting the reports of Parliamentary Committees to judicial scrutiny or review, he said. 

Referring to constitutional provisions, he said they established that there was a bar on the courts on scrutinising or judicially reviewing the functioning of the legislature or their reports. 

Earlier, some pharma companies had said the report of a parliamentary standing committee has "persuasive" value but it is neither binding nor can it be used to prove disputed facts. 

The case came up for hearing in the apex court in 2012 and centred around aspects relating to action taken by the Drugs Controller General of India and the Indian Council of Medical Research pertaining to the approval of HPV vaccine manufactured by M/s GlaxoSmithKline Asia Pvt Ltd and MSD Pharmaceuticals Pvt Ltd for preventing cervical cancer among women. 

The hearing remained inconclusive and would resume on October 31.