Suresh Kalmadi vs Union Of India & Ors.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 5th August, 2011

W.P.(C) 5367/2011

SURESH KALMADI (IN JUDICIAL CUSTODY) ….. Petitioner

Through: Mr. Ashok Desai, Mr. Neeraj Kishan Kaul Mr. Siddharth Luthra, Sr. Advs. with Ms. Shyel Trehan, Ms. Diya Kapur, Ms. Manjira Das Gupta Mr. Nikhil Pillai, Advs.

Versus

UNION OF INDIA ORS…… Respondents

Through: Mr. A.S. Chandhiok, ASG with Ms. Maneesha Dhir, Ms. Preeti Dalal,Mr. Bhagat Singh Ms. Mithu Jain,Advs. for R-1.

Mr. Dayan Krishnan with Mr. Gautam Narayan Mr. Nikhil A. Menon, Advs.for R-3.

CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. Whether reporters of Local papers may be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes

W.P.(C) No.5367/2011

RAJIV SAHAI ENDLAW, J.

1. The petitioner, a Parliamentarian in judicial custody has filed this writ

petition seeking direction for permission to attend the Parliament while

remaining in judicial custody. It is inter alia the case of the petitioner that

he has received summons dated 14th July, 2011 summoning him to attend the

8th Session of the 15th Lok Sabha commencing from 1st August, 2011; that

on enquiry, he has been informed that a Member who is in prison in

connection with any criminal case can be permitted by the competent Court

to attend day-to-day proceedings of the Lok Sabha; that the bail application

filed by him has been rejected vide order dated 6th June, 2011; that though he

made an application before the Special Judge before whom he is being

prosecuted for offences under Sections 120B read with Sections 420, 467,

468 and 471 of the Indian Penal Code, 1860 and under Sections 13(2) read

with Section 13(1)(d) of the Prevention of Corruption Act, 1988 but the

same was withdrawn with permission to apply to this Court for the reason

that Ministry of Home Affairs is a necessary party to the matter as security

arrangements in Parliament fall within the jurisdiction of the said Ministry.

2. It is further the case of the petitioner that the Courts have routinely in

the past permitted Members of Parliament to attend Parliament Sessions

while in custody; that Article 105(1) of the Constitution of India grants to a

Parliamentarian the freedom of speech subject only to the rules and standing

orders regulating the procedure of Parliament; that no rule, standing order or

procedure prevents the petitioner from attending Parliament and speaking

there-at while in custody; that the Constitutional right of the petitioner to

participate in Parliamentary proceedings and the right to vote in Parliament

as an elected representative is the essence and expression of Parliamentary

democracy and an expression of the Constitutional right to vote guaranteed

to every adult citizen under Article 326 of the Constitution of India and the

freedom of expression guaranteed by Article 19(1)(a) exercised in electing

the petitioner as an elected representative; that Parliamentary democracy is

the basic feature of the Constitution of India and there is no reason for

denying such participation to the petitioner when the same is possible while

remaining in custody; that because refusing participation in Parliamentary

proceedings to the petitioner would deny him the opportunity to fulfill his

W.P.(C) No.5367/2011 Page 3 of 21
Constitutional obligations to attend the proceedings of Parliament. It is

further pleaded that the petitioner is willing to abide by any condition which

may be imposed in this regard. The petitioner seeks mandamus to the

respondents Union of India Ministry of Home Affairs, Jail Superintendent

Tihar Jail and Central Bureau of Investigation (CBI) to take appropriate

steps for allowing the petitioner to, in custody attend the Parliamentary

proceedings commencing from 1st August, 2011 and scheduled until 8th

September, 2011.

3. The petition came up first before this Court on 29th July, 2011 when

the senior counsel for the petitioner relied on the orders dated 27th

November, 2008 and 10th February, 2009 in W.P.(C) No.7548/2008 and

W.P.(C) No.854/2009 both preferred by Sh. Rajesh Ranjan @ Pappu Yadav

permitting him to attend the Sessions of Parliament. Reliance was also

placed on newspaper reports of the Jharkhand High Court having allowed

Mr. Madhu Koda to attend Parliament while in custody.

4. However, the aforesaid orders, on a reading thereof appeared to be

consensual and were not found to contain any reasoning or adjudication. It

W.P.(C) No.5367/2011 Page 4 of 21
was thus put to the senior counsel for the petitioner that the same could not

constitute a precedent.

5. It was enquired from the senior counsel for the petitioner whether the

need / duty to attend Parliament can be placed at higher pedestal than the

other duties which other persons in detention may be required to perform. It

was felt that on the same parity, every person under detention can claim that

he / she should be allowed to carry on his trade / vocation or to perform his /

her duties including as of a son / father / husband / wife etc.; every person

performing public functions would take the same plea; the Directors on

Board of Companies, the office bearers of Trusts / Charities / Clubs would

say that they too should be allowed to perform their duties – thereby making

arrest / detention farcical.

6. The senior counsel for the petitioner had then contended that unless

the petitioner is so permitted, the Parliamentary Constituency which had

elected him would go unrepresented in Parliament. It was thus contended

that public interest demands that the petitioner be permitted to attend

Parliament.

W.P.(C) No.5367/2011 Page 5 of 21

7. In the face of the aforesaid argument, need was felt to enquire into the

past record of attendance of the petitioner in the Parliament. This Court felt

that if the petitioner in the past, without being prevented as he now is, had

not regularly attended the Parliament then he ought not be permitted to use

that as a mere excuse. The petitioner was as such called upon to file an

affidavit detailing his attendance in Parliament in the last five years.

8. Further, considering that the Parliament Sessions are now telecast

live, need of the petitioner to attend Parliament in person was also enquired

into.

9. Yet further, in view of the newspaper reports having indicated that the

petitioner was under medical examination, the petitioner was required to file

an affidavit in that regard also.

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10. Though the learned ASG and the counsel for the CBI appearing on

advance notice had sought opportunity to file counter affidavits but being of

the view that the question involved was purely legal and considering the

urgency expressed, need for issuing formal notice of the petition and calling

for counter affidavits was not felt and the counsels were called upon to

W.P.(C) No.5367/2011 Page 6 of 21
address finally on the matter.

11. The petitioner has filed an affidavit as directed. CBI has also put in a

short reply.

12. The petitioner in his affidavit has disclosed his attendance during the

Parliamentary Sessions of the 14th Lok Sabha from 2nd June, 2004 to 26th

February, 2009 as varying from a low of 42% to a high of 91%. I may

however add that except for one Session where the attendance was 42%, the

attendance in all the other Sessions was above 57%. Qua the Parliamentary

Sessions of the 15th Lok Sabha from 1st June, 2009 to 25th March, 2011

attendance has been disclosed as 100%, 85%, 48%, 75%, 12%, 4% 39%.

It is stated that the poor attendance in some of the Sessions was during the

time leading up to the Commonwealth Games and during which time the

petitioner was dedicating all his time to organization of the Games. The poor

attendance thereafter is stated to be owing to the participation in Asian

Games in China and owing to organizing the National Games at Ranchi.

13. The petitioner qua his participation in the Parliamentary Sessions has

deposed that he has frequently asked questions and participated in debates

W.P.(C) No.5367/2011 Page 7 of 21
and has in the 15th Lok Sabha already raised 42 questions. It is further

deposed that Members of Parliament are also permitted to participate in the

discussions on the floor of the House and the petitioner intends to participate

in the discussions in the ensuing Session on issues relating to Pune Airport,

the local train network and urban development.

14. The respondent No.3 CBI in its short reply has pleaded that the

offences with which the petitioner is charged with are extremely grave and

serious causing huge wrongful pecuniary benefits to certain private parties

and consequent loss to the public exchequer; that some of the other accused

officials of the Organizing Committee for Commonwealth Games of which

the petitioner was the Chairman are still absconding; that the CBI

apprehends that the petitioner may misuse the liberty sought by way of the

present petition to influence the witnesses and tamper with the evidence.

The respondent No.3 CBI without prejudice to the said pleas has also

detailed the conditions to be imposed in the event of the petition being

allowed.

15. The senior counsel for the petitioner has urged that Parliamentary

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representation is essential in a democracy and basic feature of the

Constitution; the people / citizens are represented in the Parliament through

their elected representatives as the petitioner is; that after the 44 th

amendment to the Constitution of India, Article 21 cannot be suspended; that

Article 105 prevails over Article 19; that the guilt of the petitioner has not

been established as yet and the petitioner is but an accused; that the

apprehension expressed by the CBI of the petitioner upon being so allowed

to attend Parliament, influencing witnesses can be allayed by imposing

appropriate conditions; that Members of Parliament are the live link which

connect the people to their Government; that the elected representative has a

duty under the Constitution to his electorate and which entails a

corresponding obligation to attend Parliament; that there is a need for

balancing the said functions of the petitioner with his detention; that for the

petitioner to exercise the right of freedom of speech as a Parliamentarian, he

needs to have access to the Parliament and without such access there can be

no such freedom. It is further stated that Mr. Madhu Koda who has been

allowed by the concerned Court to attend Parliament is also presently lodged

W.P.(C) No.5367/2011 Page 9 of 21
in Tihar Jail and arrangements have already been made for his transit to and

fro Parliament and it will be travesty that while one Parliamentarian lodged

in the same jail is allowed to attend Parliament, other is not.

16. The senior counsel for the petitioner during the course of hearing has

referred to:

(i) P.V. Narasimha Rao Vs. State (CBI/SPE) (1998) 4 SCC 626
in para 47 whereof it was held that Parliamentary democracy is
a part of the basic structure of the Constitution; in paras 162
165, that in a democratic form of Government, it is the Member
of Parliament who represents the people of his Constituency in
the highest law making bodies at the Centre and performs a
public duty.

(ii) People’s Union for Civil Liberties (PUCL) Vs. Union of India
(2003) 4 SCC 399 para 94 whereof details the duties and
responsibilities of a Member of Parliament.

(iii) Pandit M.S.M. Sharma Vs. Sh. Sri Krishna Sinha AIR 1959
SC 395 in paras 24 25 whereof it was laid down that the
freedom of speech under Article 194(1) cannot be cut down in
any way by any law contemplated by Article 19(2).

W.P.(C) No.5367/2011 Page 10 of 21

17. The arguments as raised by the senior counsel for the petitioner were

raised before the Constitution Bench of the Apex Court also as far back as in

K. Ananda Nambiar Vs. Chief Secretary, Government of Madras AIR

1966 SC 657. The legendary Mr. Setalvad appearing for the Member of

Parliament then under detention had also contended that a Member of

Parliament has Constitutional rights to function as such Member and to

participate in the business of the House to which he belongs – that he is

entitled to attend every Session of Parliament, to take part in the debate, and

to record his vote and no law can validly take away his right to function as

such Member. It was thus the contention before the Apex Court also that the

legislators have certain Constitutional rights which cannot validly be taken

away by any statute or statutory rule.

18. Of course, the senior counsel here, has not pegged the right of the

petitioner so high. Nevertheless, an exception to the principle of detention,

of the person under detention being deprived from access to his family,

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friends, work, vocation etc., is sought to be carved out in the case of

Members of Parliament.

W.P.(C) No.5367/2011 Page 11 of 21

19. Before adverting to what was held by the Constitution Bench on the

contentions aforesaid of Mr. Setalvad, I may humbly observe that the

argument as raised before this Court amounts to placing Members of

Parliament at a pedestal higher than their electorate. The argument assumes

that the work of a Member of Parliament is more sacred and important than

the work / vocation in which the citizens who have elected the said

Parliamentarian may be engaged in. Such an argument is archaic and creates

two classes of citizens as in a monarchy i.e. the King and the Subject and is

alien to our Constitution. The legal luminary of our times, Mr. Nani A.

Palkhivala in his book “Our Constitution Defaced and Defiled” has

explained the essence of our Constitution as under:-

“Our Constitution is primarily shaped and moulded for the
common man. It takes no account of “the portly presence of the
potentates, goodly in girth”. It is a Constitution not meant for
the ruler but the ranker, the tramp of the road, the slave with the
sack on his shoulders pricked on with the goad, the man with
too weighty a burden, too weary a load.”

20. The senior counsels for the petitioner did not address on the query

posed to them as aforesaid on 29th July, 2011, i.e. as to how the work of a
W.P.(C) No.5367/2011 Page 12 of 21
Parliamentarian can be placed on a higher pedestal. A Member of

Parliament cannot tell the citizens who have elected him that the sweat of his

brow is dearer or that the work performed by him is more important. The

argument, of a Parliamentarian being entitled to continue attending

Parliament notwithstanding his arrest and when the citizen who has elected

him, inspite of holding position, be that of a Director in a public limited

Company or of an office bearer in a Society or a Club or having the duty

towards spouse, parents and children, being not so entitled, runs contrary to

the principle of equality enshrined in our Constitution. The duty of a father

to a growing child or of a son to an ailing parent cannot be held to be any

less important. If the arguments as raised were to be accepted, it will be

difficult for the Courts to refuse the same concession to others under

detention. They will also claim that they, while remaining under custody

should be allowed to continue with their vocation to prevent their dependent

family members from starving or suffering. I find, a practicing Advocate

under detention to have similarly claimed that he should, while in custody,

be allowed to conduct the cases of clients who had earlier engaged him; he

W.P.(C) No.5367/2011 Page 13 of 21
had also contended that his clients will go unrepresented and will file

consumer complaints against him. The said claim was negatived by the

Division Bench in Daljit Singh Rajput Vs. Chandigarh Administration

MANU/PH/0047/1998. It was held that the arrest and judicial custody being

in accordance with the established criminal law of the country, he could not

exercise the rights of personal liberty, so long as deprived thereof in

accordance with the procedure prescribed by law. The same holds good for

the petitioner herein.

21. The senior counsel for the petitioner himself had invited attention to

Section 135A of the Civil Procedure Code carving out an exception for a

Parliamentarian when Parliament is in Session, from civil arrest. The

Legislature has not made any such exception qua arrest for criminal offences

or where the Member of Parliament is charged with an indictable offence

and rightly so, for the House cannot be expected to allow even the sanctuary

of its walls to protect a member from the process of criminal law.

22. Coming back to the Constitution Bench judgment in K. Ananda

Nambiar (supra), it was held that the Constitution does not impose any

W.P.(C) No.5367/2011 Page 14 of 21
obligation on individual Members of Parliament – they are neither bound to

attend the Session nor under an obligation to be present in the House when

the President addresses it; subject-matter of the various Articles of the

Constitution is not the individual rights of the Members of Parliament, but

they refer to the right of the President to issue a summon for the ensuing

Session of Parliament or to address the House. It was further held that

though the basis of democratic form of Government is that Members of

Legislatures must be given absolute freedom of expression when matters

brought before the Legislature are debated but that is only when they attend

the Session of the House. The argument that it is the Constitutional and

fundamental right of a Parliamentarian to attend the Session of the House

was negatived. It was held that if the order of detention validly prevents a

Parliamentarian from attending a Session of Parliament, no occasion arises

for exercise of the right of freedom of speech and no complaint can be made

that the said right has been invalidly invaded. Similarly, the argument that

so long as the Member of Parliament has not incurred any disqualification,

he is entitled to exercise his rights as such Member was also negatived and it

W.P.(C) No.5367/2011 Page 15 of 21
was held that a person who is detained, himself foregoes his right to

participate in the business of the Legislature. It was yet further held that so

far as a valid order of detention is concerned, a Member of Parliament can

claim no special status higher than that of an ordinary citizen and is as much

liable to be arrested and detained under it as any other citizen.

23. Though the senior counsel for the petitioner contended that

K. Ananda Nambiar was pronounced in the background of emergency when

Articles 19 to 21 were suspended and dealt with a case of preventive

detention which has an element of adjudication of guilt as compared to the

arrest in the present case and was in the context of challenge to the law of

preventive detention, but in my opinion the said factors have no bearing on

the ratio as culled out herein above of the judgement of the Constitution

Bench.

24. The counsel for the respondent No.3 CBI has contended that the

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present also cannot be said to be a case of non application of mind by the

Court in whose judicial custody the petitioner is inasmuch as the charge

sheet has been filed and cognizance has been taken. He further contends

W.P.(C) No.5367/2011 Page 16 of 21
that even in Indira Nehru Gandhi Vs. Raj Narain 1975 (Supp) SCC 1 the

same principles as in K. Ananda Nambiar were reiterated and the principle

laid down by Commons in a conference with the Lords in 1641 that

“privilege of Parliament is granted in regard to the service of the

Commonwealth and, is not to be used to the danger of the Commonwealth”

was held to be applicable. He has also drawn attention to (i) Raja Ram Pal

Vs. Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184 also laying down that

the privilege of a Member of Parliament from arrest has never been allowed

to interfere with the administration of criminal justice; (ii) passages in Sir

Thomas Erskine May‟s “Treatise on The Law, Privileges, Proceedings and

Usage of Parliament” Twenty-fourth Edition; and (iii) passages in

M.N. Kaul and S.L. Shakdher‟s “Practice and Procedure of Parliament”

Fifth Edition, and contends that it is not as if non-attendance of the

Parliamentary Session of the petitioner would lead to forfeiture of his

membership.

25. Ld. ASG has also opposed the grant of relief to the petitioner. He has

invited attention to the application filed by the petitioner in July, 2011 before

W.P.(C) No.5367/2011 Page 17 of 21
the Special Judge in whose judicial custody the petitioner is, where the

petitioner has stated that he is sick and infirm, suffering from various

ailments resulting inter alia in forgetfulness. It has been suggested that the

petitioner in such state of health cannot be expected to make any

contribution to the Parliament and is using the excuse of attending

Parliament to get away from the rigours of imprisonment after he has been

unsuccessful in obtaining bail. Reliance is also placed on Raghu Raj Pratap

Singh @ Raja Bhaiya Vs. State of U.P. MANU/UP/0237/2003 where a

Division Bench of the Allahabad High Court also held that the Legislators

have no enforceable right to participate in the Session of the House so long

as they are under detention and carved out a distinction between the right to

attend Parliament and the right to vote, right to contest election or right to

take oath as a Parliamentarian. It was held that right to vote and right to

contest election are statutory rights; while a person in jail can cast his vote

and contest election but there is no such provision regarding the right to

attend Parliament.

26. I find similar view to have been taken in Kameshwar Baitha Vs. State

W.P.(C) No.5367/2011 Page 18 of 21
of Jharkhand MANU/JH/1070/2009 and in Shekhar Tiwari Vs. State of

UP MANU/UP/0553/2009. The Apex Court in Raja Ram Pal (supra) also

held that expulsion of a Member from Parliament does not violate the

democratic principles and the challenge to expulsion on the ground that the

Constituency would go unrepresented in Parliament was not sustained. The

same ground urged here to seek a special right in favour of the petitioner,

thus has no merit.

27. What thus follows is that merely because the petitioner is a

Parliamentarian does not entitle him to claim any exception from the effect

of being in detention. Else, the petitioner has not made out any case

necessitating him to attend the Parliament. It is not the case that the vote of

the petitioner on any aspect is vital or that without such participation the

citizens of his Constituency would suffer. Though the need for participation

on issues relating to Pune Airport, the local train network and urban

development is mentioned but no particulars have been given. It cannot also

be lost sight of that the petitioner in the past, as per his convenience has been

missing Sessions of Parliament. It was not the mandate of his electorate that

W.P.(C) No.5367/2011 Page 19 of 21
he should take up the Chairmanship of the Organizing Committee for

Commonwealth Games or spend time on National Games or participate in

the Games at China. When the petitioner could afford to miss Parliament

then, his desire / keenness to attend now can only be understood as an

attempt for fresh air outside the prison walls. What the American publisher

William Randolph Hearst said, “a politician will do anything to keep his job

– even become a patriot” seems apposite.

28. Allowing the petitioner to attend the Parliament, even if in judicial

custody, would certainly provide the petitioner respite from imprisonment. I

see no reason to carve out an exception in favour of the petitioner when his

fellow prisoners are not provided such respite. Sophocles said “Nobody has

a more sacred obligation to obey the law than those who make the law”. The

Parliamentary privileges which the Members of Parliament enjoy are

intended to facilitate their work as representatives of people and should not

be mistaken as indicative of rank or creating a separate class different from

the other citizens. The Apex Court in Vineet Narain Vs. Union of India

(1998) 1 SCC 226 held that the law does not classify offenders differently

W.P.(C) No.5367/2011 Page 20 of 21
for treatment thereunder, including investigation of offences and prosecution

for offences, according to their status in life – every person accused of

committing the same offence is to be dealt with in the same manner in

accordance with law, which is equal in its application to everyone.

29. Though during the hearing, I had enquired whether any provision in

the guidelines relating to parole / furlough exists qua Parliamentarians but

the senior counsel for the petitioner has stated and it has been so observed in

Lok Sabha Debates dated 24th November, 1965 at page 3615 also that a

Parliamentarian on parole is not entitled to attend the House. Moreover,

parole is post conviction. No other instances under which a person while in

custody can be permitted to perform his duties has been cited.

30. The petitioner is thus not found entitled to the relief claimed. There is

no merit in the petition. The same is dismissed with costs of `1,00,000/- to

the Prime Minister‟s National Relief Fund.

RAJIV SAHAI ENDLAW, J

th

AUGUST 5 , 2011

„gsr‟

W.P.(C) No.5367/2011 Page 21 of 21

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