The Powers of a Committee

A Commission's proceedings are deemed judicial. A committee's are proceedings in Parliament, protected by article 105(2) and shielded from question by article 122(1).

A Commission may issue a commission to examine a witness elsewhere. A committee works by attendance.

Neither can punish for the substance. Both find facts and report. That is the paper's standing pattern.

Whether a Minister can be summoned

This is a question of practice and not of law, and the book says so rather than inventing a rule.

The practice is that committees examine officials, not Ministers. Chapter 1010 explained why for the Public Accounts Committee: the Secretary appears as the accounting officer, because the committee's business is with administration and not with policy, which the House itself settled when it voted the demand.

Two reasons stand behind the practice, and both are worth stating.

Responsibility runs to the House, not to a committee. A Minister is answerable under article 75(3) to the House of the People, collectively with the Council of Ministers. The floor of the House, the motion of no-confidence and the censure motion, chapter 1180, are the instruments for calling him to account. A committee that cross-examined Ministers would be doing in a room what the Constitution assigns to the Chamber.

And the officer is the one who can answer. A Secretary knows the file; a Minister knows the decision. A committee examining execution wants the file.

The limit of the practice. Where the allegation is against the Minister himself, chapter 1030 showed the instrument is a Joint Parliamentary Committee, a Commission of Inquiry, or an investigating agency under Module II, and not the ordinary scrutiny committee.

Privileged Government documents

The problem. A committee calls for a file and the Ministry says its disclosure would prejudice the public interest.

Again, the resolution is by practice and not by a rule this book can quote. What can be said is this.

The claim is made to the committee, not to a court. There is no application to a judge and no question of the law of privilege in evidence, which governs a court proceeding. The committee, the Minister and ultimately the House decide.

And the reason the arrangement is defensible is the reason chapter 950 gave. The whole basis of the committee's power is that a House which must hold Ministers responsible cannot be told by those Ministers what it may know. If the executive could conclusively certify what a committee may see, the committee would be examining the executive on the executive's terms.

The counter-argument, which an answer should give. A committee is not bound by the safeguards a court applies to a claim of public interest immunity, and its proceedings are not open. A document handed to a committee is handed to thirty-one politicians, and the protection for what happens to it is article 105(2) rather than any duty of confidence enforceable by the person affected.

What a committee cannot do

It cannot punish. Punishment is the House's, for contempt, on a motion.

It cannot decide rights. Chapter 1080 is the authority.

It cannot make a finding that operates as evidence. Chapter 1110 works Kalpana Mehta v. Union of India, (2018) 7 SCC 1: a report may be relied upon for the fact of what it records and may not be questioned or impeached by either side.

It cannot compel the Government to act. Chapter 1020 quoted rule 277: the report "shall have persuasive value and shall be treated as considered advice given by the Committee."

And it cannot inquire into anything it likes. That is the next chapter.

A worked example

A Standing Committee examining a Ministry's Demands for Grants calls for the file on a large contract and summons the Secretary and the contractor.

May it require the contractor, a private person, to attend? Yes. The rules empower the Committee to regulate its procedure for requiring the attendance of persons and for the production of documents, and the Committee may hear experts or special interests.

The contractor declines. The Committee has no power to fine or to prosecute. It reports the refusal to the House, which may treat it as a contempt and proceed under chapter 990, where the punishments include imprisonment even of a person who is not a member.

The contractor attends and gives false evidence. Not perjury, because a committee's proceedings are not deemed judicial proceedings as a Commission of Inquiry's are under section 5 of the 1952 Act. It is a contempt.

The Ministry declines to produce the file, claiming public interest. The claim is made to the Committee, and it is resolved between the Committee, the Minister and, if pressed, the House. No court is involved.

A member of the Committee asks that the Minister be summoned. Contrary to practice: the Secretary appears as the officer answerable for administration, and the Minister answers to the House under article 75(3).

The Committee finds that the contract was awarded improperly and says so in its report. It has found a fact and made a recommendation. It has not decided anything, and under rule 277 its report has persuasive value as considered advice.

A civil court later tries a suit on the same contract. On Kalpana Mehta, the report may be relied on for the fact of what it records, and neither party may question or impeach it.

What beginners get wrong

That a committee's summons is backed by a penalty in the rules. It is backed by the House's power to punish contempt under article 105(3).

That lying to a committee is perjury. It is a contempt. Perjury before a Commission of Inquiry is different, because section 5 of that Act deems its proceedings judicial.

That a committee can compel a Minister. The practice is that officials appear; a Minister answers to the House.

That a claim of privilege over a document goes to a court. It is resolved by the committee, the Minister and the House.

That a committee's finding binds anybody. Rule 277: persuasive value, considered advice.

Quick revision

The power: the Committees "can regulate their procedure for requiring the attendance of persons and for the production of documents" and "can hear experts or special interests", under the rules made under art 118 or art 208.

The sanction: not in the rules but in art 105(3) or art 194(3), the House's power to punish a contempt, with the punishments in chapter 990 including imprisonment of a stranger.

Against a Commission of Inquiry: a Commission has the powers of a civil court by s.4 of the 1952 Act and its proceedings are deemed judicial, so a lying witness commits perjury; a committee's proceedings are proceedings in Parliament, so a lying witness commits a contempt. Neither can punish for the substance.

Ministers: by practice, officials appear, the Secretary as accounting officer; a Minister is answerable to the House under art 75(3). Where the allegation is against the Minister, the instrument is a Joint Parliamentary Committee, a Commission of Inquiry, or an agency.

Privileged documents: the claim is made to the committee, resolved by the committee, the Minister and the House; no court. The counter-argument is that a committee applies none of a court's safeguards and sits in private.

What it cannot do: punish; decide rights; make a finding that is evidence; compel the Government; or inquire into anything it likes.

Test yourself

1. What powers does a legislative committee have to compel evidence, and where do they come from? The committees can regulate their procedure for requiring the attendance of persons and for the production of documents, and can hear experts or special interests. That power is conferred by the rules of procedure made under article 118, or article 208 in a State, and not by any provision of the Constitution directly. The sanction for a refusal is not in those rules at all: it comes from article 105(3), or article 194(3), which preserve to the House the powers, privileges and immunities it possessed before the Forty-fourth Amendment, among them the power to punish a contempt. A summons is therefore effective because disobedience is a contempt of the House, for which the House may punish, including by imprisonment even of a person who is not a member.

2. Compare the powers of a legislative committee with those of a Commission of Inquiry. A Commission's powers are conferred by section 4 of the Commissions of Inquiry Act 1952, which gives it all the powers of a civil court trying a suit in respect of summoning and enforcing attendance and examining on oath, discovery and production of documents, evidence on affidavits, requisitioning public records and issuing commissions; and its proceedings are deemed judicial proceedings, so that a witness who gives false evidence commits perjury. A committee's powers come from a rule and its proceedings are proceedings in Parliament, protected by article 105(2) and shielded by article 122(1); a witness who lies to it commits a contempt of the House rather than perjury. The important similarity is that neither can punish for the substance of what it finds: both find facts and report.

3. Can a committee summon a Minister? The established practice is that committees examine officials rather than Ministers, the Secretary appearing before the Public Accounts Committee as the accounting officer. That practice rests on two reasons. A Minister's responsibility runs, under article 75(3), to the House of the People collectively with the Council of Ministers, and the instruments for enforcing it are the floor of the House, the motion of no-confidence and the censure motion, so that a committee cross-examining Ministers would be doing in a committee room what the Constitution assigns to the Chamber. And the official is the person who can answer the questions a scrutiny committee asks, because he knows the file, while the Minister knows the decision. Where the allegation is against the Minister himself, the appropriate instruments are a Joint Parliamentary Committee, a Commission of Inquiry, or an investigating agency, and not an ordinary scrutiny committee.

4. How is a claim that a Government document is privileged resolved before a committee? Not by a court. The claim is made to the committee and is resolved between the committee, the Minister and, if the matter is pressed, the House itself. The arrangement is defensible on the ground that gives the committee its power in the first place, namely that a House which must hold Ministers responsible cannot be told by those Ministers what it may know, so that a conclusive executive certificate would leave the committee examining the executive on the executive's terms. Against that it must be said that a committee applies none of the safeguards a court applies to a claim of public interest immunity, that it sits in private, and that a document produced to it is produced to a body of politicians whose protection for what follows is article 105(2) rather than any duty enforceable by the person affected.