In a judgment that could have far-reaching consequences, the Supreme Court on Wednesday, 9 May 2018, held that reports of Parliamentary Committee can be relied on in court proceedings. The Court clarified that using the arguments or findings of such reports would not violate parliamentary privilege (the right to absolute freedom of speech for MPs for what they say in Parliament). However, because of parliamentary privilege, these reports cannot be challenged in the courts.
It should be noted that according to the judgment, the contents of such a report are merely admissible as evidence, not conclusive in themselves. Even though the reports can’t be challenged, if someone wants to contest what they say, they can submit other evidence to prove an alternative view.
The judgment was given by a five-judge Constitution Bench made up of Chief Justice of India Dipak Misra, along with Justices AK Sikri, DY Chandrachud, AM Khanwilkar and Ashok Bhushan, the same judges currently hearing the Aadhaar case. Three concurring opinions have been written by the judges, one by CJI Misra and Justice Khanwilkar, one by Justices Chandrachud and Sikri, and one by Justice Bhushan.
Significance of Decision
The reason the case is significant is because it opens the door for using Parliamentary Standing Committee Reports in big PIL cases or cases involving difficult investigations and misconduct by the government. It can often be difficult to get evidence in some of these cases, but Parliamentary Committees have no such problems with access. Reports of such Committees often contain valuable evidence and findings, obtained after special inquiries.
The background to this judgment is itself an excellent example of this. The issues had been referred to the Constitution Bench by Justice Dipak Misra (before he became CJI) and Justice Rohinton Nariman, who were hearing a PIL relating to irregularities in the conduct of studies using HPV vaccines in India.
These irregularities in the studies conducted by American charity PATH (the project was reportedly funded by the Bill and Melinda Gates Foundation) had allegedly adverse effects on the subjects, including some deaths in Andhra Pradesh and Gujarat. The PIL had been filed against PATH’s Director, as well as the authorities of the Central Government, the Andhra Pradesh and Gujarat Governments, the Indian Council of Medical Research (ICMR) and Drugs Controller General of India (DGCI) who green-lit the project, as well as the manufacturers of the vaccine, Glaxo Smith Kline Asia and MSD Pharmaceuticals.
During arguments in this original case, the petitioners tried to quote the findings of the 81st and 72nd Reports of the Rajya Sabha’s Parliamentary Standing Committee on Health and Family Welfare. In these reports, the Committee had found that the studies had actually been in the nature of clinical trials, and found serious irregularities and illegalities in the way the projects were sanctioned and carried out.
The advocate for one of the pharmaceutical companies tried to argue that these damning reports couldn’t be relied on in Parliament. Then-Attorney-General Mukul Rohatgi also went along with the argument, which was contested by senior advocates Anand Grover and Colin Gonsalves, arguing for the petitioners. This was what led to the reference to a Constitution Bench to clarify the legal position on this point, where Gonsalves and Grover argued against the government and pharma companies’ position again.
Relieved That These Reports can be Used in Public Interest: Colin Gonsalves
Speaking to The Quint, Colin Gonsalves said that it was a good result, though he does not know when the PIL will be taken up again, and by which judges.
Speaking about the broader picture this judgment is part of, he said:
This was an attempt by two multinational drug companies to prevent a very important Parliamentary Committee Report from even being looked at by the Supreme Court. The enormity of what they were trying to do, the enormity of the sabotage they were attempting can be seen by this – it was a case relating to clinical trials. And today clinical trials are going on in every nook and corner of this country, particularly in backward tribal areas where the tribals of India are turned into guinea pigs.
Gonsalves expressed disappointment with how the tactics adopted by the pharmaceuticals have caused such a long delay in the case. The PIL was filed in 2012 originally, and even though this ruling has come from the Supreme Court, the main case still needs to be resumed, as the Court has not passed any judgment on its merits.
Still, he is pleased with what the Constitution Bench held: “The issue was so urgent and pressing, the sabotage so determined, that we are hugely relieved that these reports can be used in public interest by the courts.”
The senior advocate noted, however, that this case highlighted the the tremendous hold that pharmaceutical companies have over Indian governments. He took particular exception to the way the Attorney General and government agencies like the DGCI had fallen in line with the argument on parliamentary privilege raised by the pharma companies:
In this case, the Indian government should have come forward and taken an independent stand, against the guinea pig testing. If you look at the Parliamentary Committee Report, they have on numerous occasions admitted wrongdoing. If they have admitted wrongdoing, how could they stand with the pharmaceutical companies in court?
Gonsalves believes that this shows the capability of such companies to exert pressure on the government, and that this can be even more dangerous during election periods.
Regardless of such power, the apex court’s judgment is at least a loss on this particular point.
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