Public Disclosure of CAG Report essential in public interest: Prashant Bhushan

On February 10, 2016, senior advocate, Prashant Bhushan was called to appear before the Rajya Sabha Privilege Committee, in relation to the breach of privilege notice against him. The matter was regarding the premature disclosure of the CAG report. While making a detailed submission on the legal position on Breach of Privilege, Bhushan laid down how the public disclosure of this report was essential in the public interest and that the breach of privilege notice is misconceived in law, and under the given circumstances of the case.

Legal Position on Breach of Privilege

The position of law on the matter according to Prashant Bhushan is as follows:

1. The motion of parliamentary Privileges has a colonial origin from British Parliament which was regarded as sovereign. In India, people are the sovereign and Parliament is it's representative.

2. The constitution has empowered its citizens with Fundamental Rights, including the right to free speech. The Supreme Court of India has held this to include the Right to Information holding that citizens have the right to know what their representatives are doing in every aspect.

3. The Supreme Court has also held that Parliamentary Privileges would include only those for allowing the Parliament to function, without impediment. The following judgments may be relevant to substantiate the aforesaid view:

The Supreme Court in its judgment in Raja Ram Pal’s case [2007 (3) SCC 184] has thrown light on the nature and scope of parliamentary privilege in the following words: “The raison d’etre for these privileges is again succinctly explained by Sir Erskine May thus; The distinctive mark of a privilege is its ancillary character. The privileges of parliament are rights which are absolutely necessary for the due execution of its powers’. They are enjoyed by individuals Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity.”

This is has been reiterated by the Supreme Court in Lokayukta vs State of M.P., (2014) 4 SCC 473, wherein the Supreme Court has also held that privileges do not extend to administrative matters. Supreme Court held: “It is made clear that privileges are available only insofar as they are necessary in order that the House may freely perform its functions… Privileges do not extend to the activities undertaken outside the House on which the legislative provisions would apply without any differentiation.  In the present case, the action taken by the petitioners is within the powers conferred under the above statutes and therefore, the action taken by the petitioners is legal. Further, initiation of action for which the petitioners are legally empowered, cannot constitute breach of any privilege.”

It is clear that the disclosure of the report has not impeded the functioning of Parliament in any way and therefore it cannot constitute Breach of privilege.

4. Though it has sometimes been held by the Parliament that premature disclosure of Parliamentary Proceedings or its committee may amount to Breach of Parliamentary Privileges. A CAG report is not a part of the Parliamentary Proceedings or its committee; rather it is an autonomous body created by the constitution. Merely because it is required under law to be tabled in the parliament doesn’t make it the report of the parliament or its committee.

5. The CAG report complained of in the present case was the draft audit report of the CAG prepared prior to submission of its final report.

6. The Central Information Commission (Manohar Parrikar & Ors. V. Accountant General, Goa) vide its order dated 10.06.2010 held that that the disclosure of the draft report, or even the final report of the CAG would not amount to breach of parliamentary privileges. The same view was taken by the Attorney General in 2012 when the issue of premature disclosure of the CAG reports or its draft was raised by the CAG with the government.

In this instant case, the draft CAG report in question contained important information about the manner in which the RIL- the operator of KGD-6 gas basin has cheated the government and caused loot of the public exchequer. It brought to light that: a) Reliance hugely and wilfully overestimated the reserves, b) Reliance hugely increased its capital expenditure, which is cost recoverable by over invoicing etc, c) Most of the procurement made was over-invoiced, d) Reliance failed to adhere to its production commitments, e) Reliance did not relinquish its fields as required by the contract, f) Reliance did not pay the full profit petroleum to the Government.

In light of the above, the public disclosure of this report was essential in public interest & breach of privilege notice is misconceived in law, and under the given circumstances of the case.



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