Cervical cancer vaccine case: Can rely on Parliamentary Committee Reports as evidence in court, says Supreme Court
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Kalpana Mehta vs. Union of India & Ors. WP (C) 558/2012
A US-based NGO, PATH, had in 2012, in collaboration with ICMR and the governments of Gujarat and Andhra Pradesh, conducted Human Papilloma Virus (HPV) vaccine clinical trials on about 24,000 tribal and marginalised girls in the two states.
In late 2012 the Supreme Court issued notices to the government of India. In 2013, a Parliamentary Standing Committee unequivocally concluded that PATH’s project was a clear case of child abuse and that the vaccine project had violated several fundamental rights of Indian citizens. The Supreme Court had expanded notices issued to include PATH and issued notices to all the respondents for interim reliefs requested by the Petitioner including an in-depth medical follow up for the girls involved.
Gardasil and Cervarix are two unproven and hazardous vaccines purported to prevent cervical cancer, marketed in India by MSD Pharmaceuticals Pvt. Ltd. (subsidiary of Merck) and GlaxoSmithKline Ltd. A petition filed by Kalpana Mehta, Nalini Bhanot and V. Rukmini Rao representing (Gramya Resource Centre for Women from Andhra Pradesh) challenged their licensing for use in the private sector and attempts to introduce them in the public sector. The petition implicated the Drugs Controller for having licensed the vaccines without adequate research on safety and efficacy; the Health Ministry for not carrying out an enquiry into licensing of these vaccines as ordered by the Parliamentary Standing Committee on Health and Family Welfare in April 2010 nor taking any action on the report of the enquiry committee set up by itself despite all irregularities of PATH project being confirmed.
Rather than looking at safety and efficacy of these vaccines in India, this project was meant to influence the government to adopt these vaccines for introduction in the public sector. The petitioners are being represented by senior Supreme Court advocate and SLIC founder Colin Gonsalves.
Last year, the PIL had been referred to the Constitutional Bench last year to decide on whether the court could place reliance on the report of the Parliamentary Standing Committee (PSC) in a litigation. On May 9, the Constitution Bench comprising Chief Justice Dipak Mishra, Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan held that placing reliance on Parliamentary Committee Reports in Court Proceedings does not violate parliamentary privileges.
The lawyers, Mr Harish Salve, appearing for MSD Pharmaceuticals Ltd (Merck), Mr Venu Gopal, Attorney General representing the government of India, Mr Shyam Diwan, PATH, had argued before the Constitutional Bench in the past that the PSC report could not be treated as evidence in the hearing as it forms part of the parliamentary privileges. The petitioners’ lawyers, Mr Colin Gonsalves and Mr Anand Grover appeared before the Bench on this matter.
On May 9, the Constitutional Bench unanimously held that the privileges are a colonial concept and the Constitution of India has been drafted to move away from the legacies of colonial rules. The Court also held that like any other public document, the PSC reports will be subject to the provisions of evidence. A 338-page long judgment highlighted that while allaying the misplaced apprehensions of prejudice against the respondents, the Court observed that the PSC report could be accepted as evidence.
The Court also stated that merely because a document is accepted as evidence does not lead to any presumption that the contents of the documents are also true and correct. The Court held that in any given litigation, be it civil or criminal, the parties have liberty to rely on all evidences and materials which is in its power and Court has a duty to consider entire material brought before it.