MSD Pharma HPV Vaccine: Supreme Court hearing on issue
New Delhi: The Supreme Court in the matter of the HPV vaccine approval of MSD pharmaceuticals recently commenced hearing on the issue whether it can rely upon or refer to a parliamentary committee report during judicial proceedings before it.
A five-judge constitution bench headed by Chief Justice Dipak Misra heard the arguments of senior advocate Harish Salve on the issue.
Salve appeared for the MSD Pharmaceuticals, a respondent in the case and a manufacturer producing vaccine Human Papilloma Virus (HPV) for preventing cervical cancer in women.
The issue arose after the vaccine causes the death of the certain person regarding which a case was filed in supreme court regarding the untimely death of certain persons and grant of compensation.
The Drugs Controller General of India and the Indian Council of Medical Research (ICMR) had approved a vaccine, namely, Human Papilloma Virus (HPV) manufactured by GlaxoSmithKline Asia Pvt. Ltd. and MSD Pharmaceuticals Private Limited, respectively for preventing cervical cancer in women.
The experimentation of the vaccine was done as an immunization by the Governments of Gujarat and Andhra Pradesh with the charity provided by PATH International.
The case came up for hearing in the apex court in 2012 and centered around on many an aspect relating to action taken by the Drugs Controller General of India and the Indian Council of Medical Research pertaining to approval of a vaccine. The Bench comprising of Justices Dipak Misra and Rohinton Fali Nariman was considering the petitions.
During the course of the hearing, the attention of the court was drawn to the 81st Report of Parliamentary Standing Committee dated December 22, 2014.
On 5th April 2017, court had given the order which had two questions which are to be addressed by the constitution bench - if the top court in the hearing of a plea under Article 32 and Article 136 "can refer to and place reliance upon the report of the Parliamentary Standing Committee?" and whether the report could be looked at for the purpose of reference?
It further said if there could be restrictions for the purpose of reference in view of the parliamentary privilege and the delicate balance between the constitutional institutions.
When the report of this Committee was produced, the question arose before the court with regard to the "concept of consent" for the administration of the vaccine and the resultant illness suffered by the victims.
The court had then asked the states for their response on the steps that have been taken by the concerned Governments keeping in view the various instructions given from time to time including what has been stated in the report of the Parliamentary Standing Committee.
During the hearing, the court has contended that the report of parliament the parliamentary committees could be considered by the court to take a look at it but can’t be used for evidentiary purposes or to direct the parliament to act on them, the Supreme Court was told on Thursday.
The constitution bench of Chief Justice Dipak Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan was told that every constitutional body acted independently of other co-equal constitutional institutions.
Senior counsel Harish Salve while telling the court said that " the reference to what goes on in a co-equal constitutional institution is always circumspect. Freedom of speech and expression recognized explicitly or otherwise, is implicit in the working of every constitutional institution".
Telling the court that it was the institution alone that controls and regulates itself, he said: "Every function of an institution should be regulated by that institution alone", be it the government auditor CAG or the Election Commission and termed the independent functioning of the constitutional institution as "the value of our democratic system".
At the time of the examination of the question whether courts could use reports of the parliamentary committee as evidence for determining an issue the slave said that if somebody lies before the parliament, then it for parliament alone to decide on its course of action against such a person.
In response to a query from the bench whether courts could not use the general information that is provided in the reports of the parliamentary committees, Salve said that general information could be used but not the specific.
Article 32 gives the right to move the top court for the enforcement of fundamental rights and Article 136 provides for the top court to grant leave to appeal against judgment, decree, sentence or order passed or made by any court or tribunal in the territory of India.
Centre and state governments have maintained their stand that the vaccine was necessary and steps have been taken to avoid any kind of hazards.
The hearing remained inconclusive and would continue on October 24.